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INTRODUCTORY  NOTICE. 


THERE  is  a  prevailing  tendency  in  the  popular  mind,  at  the  present 
time,  to  undervalue  the  importance  of  the  States  in  the  American  system 
of  Government.  This  fact  has  suggested  the  republication  of  this 
Essay  on  their  true  relations  to  the  Federal  Government.  A  word  as 
to  the  personal  history  of  the  author. 

It  has  been  the  fate  of  ABEL  PARKER  UPSHUR,  to  be  more  gene- 
rally known  by  the  accidental  circumstance  of  his  melancholy  end, 
than  by  his  own  merits.  He  was  killed  by  the  explosion  of  a  great 
gun  (the  Peacemaker,  as  it  was  called,)  on  board  the  Steamer  Prince- 
ton ;  being  at  the  time  the  Secretary  of  State  of  the  United  States, 
under  President  Tyler.  This  was  on  the  28th  of  February,  1844. 
He  had  studied  law  under  William  Wirt :  he  practised  his  profession 
from  1810  to  1824.  After  an  interval  of  retirement,  he  held  high 
judicial  position  as  Judge  of  the  General  Court  of  Virginia,  from 
1826  to  1841 ;  at  which  last  period,  he  entered  Mr.  Tyler's  Cabinet 
as  Secretary  of  the  Navy.  On  Mr.  "Webster's  retirement,  in  the 
Spring  of  1843,  Judge  Upshur  succeeded  him  as  Secretary  of  State. 


PREFACE. 


THE  book  to  which  the  following  pages  relate  has  been  for 
several  years  before  the  public.  It  has  been  reviewed  in  some 
of  the  principal  periodicals  of  the  country,  and  recommended 
in  the  strongest  terms  to  public  favor.  I  have  no  disposition 
to  detract  from  its  merits  as  a  valuable  compendium  of  historical 
facts,  or  as  presenting  just  views  of  the  Constitution  in  many 
respects.  My  attention  has  been  directed  to  its  political  prin- 
ciples alone,  and  my  sole  purpose  has  been  to  inquire  into  the 
correctness  of  those  principles,  so  far  as  they  relate  to  the  true 
nature  and  character  of  our  Federal  Government. 

It  may  well  excite  surprise  that  so  elaborate  a  work  as  this 
of  Judge  Story,  and  one  so  well  calculated  to  influence  public 
opinion,  should  have  remained  so  long  unnoticed  by  those  who 
do  not  concur  in  the  author's  views.  No  one  can  regret  this 
circumstance '  more  than  I  do ;  for  I  would  willingly  have  de- 
volved upon  abler  hands  the  task  which  I  have  now  undertaken. 
I  offer  no  apology  for  the  manner  in  which  that  task  has  been 
performed.  It  is  enough  for  me  to  say,  that  the  reader,  how- 
soever unfavorable  his  opinion  of  this  essay  may  be,  will  not  be 
more  sensible  of  its  imperfections  than  I  am.  I  know  that  the 
actual  practice  of  the  federal  government  for  many  years  past, 
and  the  strong  tendencies  of  public  opinion  in  favor  of  federal 
power,  forbid  me  to  hope  for  a  favorable  reception,  except  from 
the  very  few  who  still  cherish  the  principles  which  I  have  en- 
deavored to  re-establish. 

The  following  essay  was  prepared  about  three  years  ago,  with 
a  view  to  its  publication  in  one  of  our  periodical  reviews.  Cir- 
cumstances, which  it  is  unnecessary  to  mention,  prevented  this 


iv  PREFACE. 

from  being  done,  and  the  work  was  laid  aside  and  forgotten. 
My  attention  has  been  again  called  to  it  within  a  few  weeks 
past,  and  I  am  now  induced  to  give  it  to  the  public,  under  the 
hope  that  it  may  not  be  without  its  influence  in  directing  the 
attention  of  those  who  have  not  yet  lost  all  interest  in  the  sub- 
ject, to  the  true  principles  of  our  constitution  of  government. 

I  do 'not  claim  the  merit  of  originality.  My  conclusions  are 
drawn  from  the  authentic  information  of  history,  and  from  a 
train  of  reasoning,  which  will  occur  to  every  mind,  on  the  facts 
which  history  discloses.  My  object  will  be  answered,  if  even 
the  few  by  whom  these  pages  will  probably  be  read  shall  be 
induced  to  re-examine,  with  a  sincere  desire  after  truth,  the 
great  principles  upon  which  political  parties  in  our  country 
were  once  divided,  but  which  there  is  much  reason  to  fear  are 
no  longer  respected,  even  if  they  be  not  wholly  forgotten. 

I  do  not  offer  this  essay  as  a  commentary  on  the  Federal 
Constitution.  Having  proposed  to  myself  but  a  single  object, 
I  have  endeavored  to  compress  my  matter  within  as  small  a 
compass  as  possible,  consistent  with  a  due  degree  of  clearness, 
and  a  proper  reference  to  authorities,  where  authorities  are 
relied  on. 


FEDERAL    GOVERNMENT 

A   REVIEW. 


COMMENTARIES  ox  THE  CONSTITUTION  OF  THE  UNITED  STATES,  WITH  A  PRE- 
LIMINARY REVIEW  OF  THE  CONSTITUTIONAL  HISTORY  OF  THE  COLONIES 
AND  STATES  BEFORE  THE  ADOPTION  OF  THE  CONSTITUTION.  BY  JOSEPH 
STORY,  LL.  D.,  DANE  PROFESSOR  OF  LAW  IN  HARVARD  UNIVERSITY. 

IT  came  within  the  range  of  Judge  Story's  duties,  as  Dane 
Professor  of  Law  in  Harvard  University,  to  expound  and  illus- 
trate the  Constitution  of  the  United  States.  His  lectures  upon 
that  subject  have  been  abridged  by  himself,  and  published  in  a 
separate  volume,  under  the  above  title.  Although  the  work  is 
given  to  the  public  as  an  abridgment,  it  is  nevertheless,  as  it 
professes  to  be,  "a  full  analysis  and  exposition  of  the  constitu- 
tion of  government  of  the  United  States;"  and  presents,  in 
the  opinion  of  the  author  himself,  the  "leading  doctrines"  of 
the  original,  "  so  far  as  they  are  necessary  to  a  just  under- 
standing of  the  actual  provisions  of  the  Constitution."  The 
author  professes  to  have  compiled  it  "  for  the  use  of  colleges  and 
high  schools ;"  but  as  it  contains  all  the  important  historical 
facts,  and  all  the  leading  reasons  upon  which  his  own  opinions 
have  been  based,  and  as  it  has  been  prepared  with  elaborate 
care  in  other  respects,  we  may  reasonably  suppose,  without  im- 
peaching his  modesty,  that  he  expected  it  to  be  received  as  a 
complete  work.  It  is,  indeed,  quite  as  full  as  any  such  work 


5  TRUE  NATURE  AND  CHARACTER  OF 

needs  to  be,  for  any  purpose,  except,  perhaps,  the  very 
L  "  J  first  *lessons  to  the  student  of  constitutional  law.  The 
politician  and  the  jurist  may  consult  it,  with  a  certainty  of  find- 
ing all  the  prominent  topics  of  the  subject  fully  discussed. 

A  work  presenting  a  proper  analysis  and  correct  views  of  the 
Constitution  of  the  United  States  has  long  been  a  desideratum 
with  the  public.  It  is  true  that  the  last  fifteen  years  have  not 
been  unfruitful  in  commentaries  upon  that  instrument ;  such 
commentaries,  however,  as  have,  for  the  most  part,  met  a  de- 
served fate,  in  immediate  and  total  oblivion.  Most  of  them 
have  served  only  to  throw  ridicule  upon  the  subject  which  they 
professed  to  illustrate.  A  few  have  appeared,  however,  of  a 
much  higher  order,  and  bearing  the  stamp  of  talent,  learning 
and  research.  Among  these,  the  work  before  us  and  the  Com- 
mentaries of  Chief  Justice  Kent  hold  the  first  rank.  Both  these 
works  are,  as  it  is  natural  they  should  be,  strongly  tinctured 
with  the  political  opinions  of  their  respective  authors ;  and  as 
there  is  a  perfect  concurrence  between  them  in  this  respect, 
their  joint  authority  can  scarcely  fail  to  exert  a  strong  influence 
upon  public  opinion.  It  is  much  to  be  regretted  that  some  one, 
among  the  many  who  differ  from  them  in  their  views  of  the  Con- 
stitution, and  who  possess  all  the  requisite  qualifications  for  the 
task,  should  not  have  thought  it  necessary  to  vindicate  his  own 
peculiar  tenets,  in  a  work  equally  elaborate,  and  presenting  just 
claims  to  public  attention.  The  authority  of  great  names  is 
of  such  imposing  weight,  that  mere  reason  and  argument  can 
rarely  counterpoise  it  in  the  public  mind ;  and  its  preponderance 
is  not  easily  overcome,  except  by  adding  like  authority  to  the 
weight  of  reason  and  argument,  in  the  opposing  scale.  I  hope 
it  is  not  yet  too  late  for  this  suggestion  to  have  its  effect  upon 
those  to  whom  it  is  addressed. 

The  first  commentary  upon  the  Constitution,  the  Federalist, 
is  decidedly  the  best  which  has  yet  appeared.  The  writers  of 
that  book  were  actors  in  all  the  interesting  scenes  of  the  period, 
and  two  of  them  were  members  of  the  convention  which  formed 
the  Constitution.  Added  to  this,  their  extensive  information, 
their  commanding  talents,  and  their  experience  in  great  public 
affairs,  qualified  them,  in  a  peculiar  degree,  for  the  task  which 
they  undertook.  Nevertheless,  their  great  object  was  to  recom- 


OUR   FEDERAL   GOVERNMENT.  Q 

mend  the  Constitution  to  the  people,  at  a  time  when  it  was  very 
uncertain  whether  they  would  adopt  it  or  not ;  and  hence  their 
work,  although  it  contains  a  very  full  and  philosophical  analysis 
of  the  subject,  comes  to  us  as  a  mere  argument  in  support  of  a 
favorite  measure,  and,  for  that  reason,  does  not  always  com- 
mand our  entire  confidence.  Besides,  the  Constitution  was  •-  ^-, 
then  *untried,  and  its  true  character,  which  is  to  be  learned 
only  from  its  practical  operation,  could  only  be  conjectured. 
Much  has  been  developed,  in  the  actual  practice  of  the  govern- 
ment, which  no  politician  of  that  day  could  either  have  foreseen 
or  imagined.  New  questions  have  arisen,  not  then  anticipated, 
and  difficulties  and  embarrassments,  wholly  unforeseen,  have 
sprung  from  new  events  in  the  relation  of  the  States  to  one  an- 
other, and  to  the  general  government.  Hence  the  Federalist 
cannot  be  relied  on,  as  full  and  safe  authority  in  all  cases.  It 
is,  indeed,  matter  of  just  surprise,  and  affording  the  strongest 
proof  of  the  profound  wisdom  and  far-seeing  sagacity  of  the 
authors  of  that  work,  that  their  views  of  the  Constitution  have 
been  so  often  justified  in  the  course  of  its  practical  operation. 
Still,  however,  it  must  be  admitted  that  the  Federalist  is  de- 
fective in  some  important  particulars,  and  deficient  in  many  more. 
The  Constitution  is  much  better  understood  at  this  day  than  it 
was  at  the  time  of  its  adoption.  This  is  not  true  of  the  great 
principles  of  civil  and  political  liberty,  which  lie  at  the  founda- 
tion of  that  instrument ;  but  it  is  emphatically  true  of  some  of 
its  provisions,  which  were  considered  at  the  time  as  compara- 
tively unimportant,  or  so  plain  as  not  to  be  misunderstood,  but 
which  have  been  shown,  by  subsequent  events,  to  be  pregnant 
with  the  greatest  difficulties,  and  to  exert  the  most  important 
influence  upon  the  whole  character  of  the  government.  Con- 
temporary expositions  of  the  Constitution,  therefore,  although 
they  should  be  received  as  authority  in  some  cases,  and  may  en- 
lighten our  judgments  in  most  others,  cannot  be  regarded  as 
safe  guides,  by  the  expounder  of  that  instrument  at  this  day. 
The  subject  demands  our  attention  now  as  strongly  as  it  did  be- 
fore the  Federalist  was  written. 

It  is  not  surprising,  therefore,  that  the  work  now  under  con- 
sideration should  have  been  hailed  with  pleasure,  and  received 
with  every  favorable  disposition.  Judge  Story  fills  a  high  sta- 


7  TRUE  NATURE  AND  CHARACTER  OF 

tion  in  the  judiciary  of  the  "United  States,  and  has  acquired  a 
character,  for  talents  and  learning,  which  ensures  respect  to 
whatever  he  may  publish  under  his  own  name.  His  duty,  as  a 
judge  of  the  supreme  court,  has  demanded  of  him  frequent  in- 
vestigations of  the  nicest  questions  of  constitutional  law ;  and 
his  long  service  in  that  capacity  has  probably  brought  under  his 
review  every  provision  of  that  instrument,  in  regard  to  which 
any  difference  of  opinion  has  prevailed.  Assisted  as  he  has 
been  by  the  arguments  of  the  ablest  counsel,  and  by  the  joint 
deliberations  of  the  other  judges  of  the  court,  it  would  be  in- 
deed wonderful,  if  he  should  hazard  his  well-earned  reputation 
as  a  jurist,  upon  any  hasty  or  unweighed  opinion,  upon  subjects 
r*Q-|  s°  grave  and  important.  He  has  also  been  an  attentive 
observer  of  political  events,  and  although  by  no  means 
obtrusive  in  politics,  has  yet  a  political  character,  scarcely  less 
distinguished  than  his  character  as  a  jurist.  To  all  these  claims 
to  public  attention  and  respect,  may  be  added  a  reputation  for 
laborious  research,  and  for  calm  and  temperate  thinking.  A 
work  on  the  Constitution  of  the  United  States,  emanating  from 
such  a  source,  cannot  fail  to  exert  a  strong  influence  upon  pub- 
lic opinion,  and  it  is,  therefore,  peculiarly  important  that  its 
real  character  should  be  understood.  Whatever  may  be  the 
cast  of  its  political  opinions,  it  can  scarcely  fail  to  contain 
many  valuable  truths,  and  much  information  which  will  be  found 
useful  to  all  classes  of  readers.  And,  so  far  as  its  political 
opinions  are  concerned,  it  is  of  the  highest  importance  to  guard 
the  public  mind  against  the  influence  which  its  errors,  if  errors 
there  be,  may  borrow  from  the  mere  authority  of  the  distin- 
guished name  under  which  they  are  advanced. 

The  plan  of  the  work  before  us  is  very  judicious.  In  order 
to  a  correct  understanding  of  the  Constitution,  it  is  absolutely 
necessary  to  understand  the  situation  of  the  States  before  it  was 
adopted.  The  author,  acting  upon  this  idea,  distributes  his 
work  into  three  great  divisions.  "  The  first  will  embrace  a 
sketch  of  the  charters,  constitutional  history,  and  ante-revolu- 
tionary jurisprudence  of  the  colonies.  The  second  will  em- 
brace the  constitutional  history  of  the  States,  during  the  revo- 
lution, and  the  rise,  progress,  decline  and  fall  of  the  confedera- 
tion. The  third  will  embrace  the  history  of  the  rise  and  adop- 


OUR  FEDERAL   GOVERNMENT.  8 

tion  of  the  Constitution,  and  a  full  exposition  of  all  its  provi- 
sions, with  the  reasons  on  which  they  were  respectively  founded, 
the  objections  by  which  they  were  respectively  assailed,  and 
such  illustrations  drawn  from  contemporaneous  documents, 
and  the  subsequent  operations  of  the  government,  as  may  best 
enable  the  reader  to  estimate  for  himself,  the  true  value  of  each." 
This  plan  is  at  once  comprehensive  and  analytic.  It  embraces 
every  topic  necessary  to  a  full  understanding  of  the  subject, 
while,  at  the  same  time,  it  presents  them  in  the  natural  order  of 
investigation.  It  displays  a  perfect  acquaintance  with  the  true 
nature  of  the  subject,  and  promises  every  result  which  the  rea- 
der can  desire.  The  first  part  relates  to  a  subject  of  the  great- 
est interest  to  every  American,  and  well  worthy  the  study  of 
philosophical  enquirers,  all  over  the  world.  There  is  not,  within 
the  whole  range  of  history,  an  event  more  important,  with  refer- 
ence to  its  effects  upon  the  world  at  large,  than  the  settlement 
of  the  American  colonies.  It  did  not  fall  within  the  plan  of 
our  author  to  enquire  very  extensively,  or  very  minutely,  into 
the  mere  history  of  the  events  which  *  distinguished  that  r*q-i 
extraordinary  enterprise.  So  far  as  the  first  settlers  may 
be  regarded  as  actuated  by  avarice,  by  ambition,  or  by  any 
other  of  the  usual  motives  of  the  adventurer,  their  deeds  belong 
to  the  province  of  the  historian  alone.  We,  however,  must  con- 
template them  in  another  and  a  higher  character.  A  deep  and 
solemn  feeling  of  religion,  and  an  attachment  to,  and  an  under- 
standing of,  the  principles  of  civil  liberty,  far  in  advance  of  the 
age  in  which  they  lived,  suggested  to  most  of  them  the  idea  of 
seeking  a  new  home,  and  founding  new  institutions  in  the  western 
world.  To  this  spirit  we  are  indebted  for  all  that  is  free  and 
liberal  in  our  present  political  systems.  It  would  be  a  work  of 
very  great  interest,  and  altogether  worthy  of  the  political  his- 
torian to  trace  the  great  principles  of  our  institutions  back  to 
their  sources.  Their  origin  would  probably  be  discovered 
at  a  period  much  more  remote  than  is  generally  supposed. 
We  should  derive  from  such  a  review  much  light  in  the  inter- 
pretation of  those  parts  of  our  systems,  as  to  which  we  have  no 
precise  rules  in  the  language  of  our  constitutions  of  govern- 
ment. It  is  to  be  regretted  that  Judge  Story  did  not  take  this 
view  of  the  subject.  Although  not  strictly  required  by  the 


9  TRUE  NATURE  AND  CHARACTER  OF 

i 

plan  of  his  "work,  it  was,  nevertheless,  altogether  consistent  -Frith 
it,  and  would  have  added  much  to  its  interest  with  the  general 
reader.  His  sources  of  historical  information  were  ample,  and 
his  habits  and  the  character  of  his  mind  fitted  him  well  for  such 
an  investigation,  and  for  presenting  the  result  in  an  analytic 
and  philosophical  form.  He  has  chosen,  however,  to  confine 
himself  within  much  narrower  limits.  Yet,  even  within  those 
limits,  he  has  brought  together  a  variety  of  historical  facts  of 
great  interest,  and  has  presented  them  in  a  condensed  form, 
well  calculated  to  make  a  lasting  impression  upon  the  memory. 
The  brief  sketch  which  he  has  given  of  the  settlement  of  the 
several  colonies,  and  of  the  charters  from  which  they  derived 
their  rights  and  powers  as  separate  governments,  contains  much 
to  enable  us  to  understand  fully  the  relation  which  they  bore 
to  one  another  and  to  the  mother  country.  This  is  the  true 
starting  point  in  the  investigation  of  those  vexed  questions  of 
constitutional  law  which  have  so  long  divided  political  parties 
in  the  United  States.  It  would  seem  almost  impossible  that 
any  two  opinions  could  exist  upon  the  subject ;  and  yet  the 
historical  facts,  upon  which  alone  all  parties  must  rely,  although 
well  authenticated  and  comparatively  recent,  have  not  been  un- 
derstood by  all  men  alike.  Our  author  was  well  aware  of  the 
importance  of  settling  this  question  at  the  threshold  of  his  work. 
Many  of  the  powers  which  have  been  claimed  for  the  federal 
r*101  g°vernmentj  by  tne  political  party  to  which  he  *be- 
longs,  depend  upon  a  denial  of  that  separate  existence, 
and  separate  sovereignty  and  independence,  which  the  opposing 
party  has  uniformly  claimed  for  the  States.  It  is,  therefore, 
highly  important  to  the  correct  settlement  of  this  controversy, 
that  we  should  ascertain  the  precise  political  condition  of  the 
several  colonies  prior  to  the  revolution.  This  will  enable  us  to 
determine  how  far  our  author  has  done  justice  to  his  subject,  in 
the  execution  of  the  first  part  of  his  plan  ;  and  by  tracing  the 
colonies  from  their  first  establishment  as  such,  through  the  va- 
rious stages  of  their  progress  up  to  the  adoption  of  the  Federal 
Constitution,  we  shall  be  greatly  aided  in  forming  a  correct 
opinion  as  to  the  true  character  of  that  instrument. 

It  appears  to  be  a  favorite  object  with  the  author  to  impress 
upon  the  mind  of  the  reader,  at  the  very  commencement  of  his 


OUR  FEDERAL   GOVERNMENT.  1Q 

work,  the  idea  that  the  people  of  the  several  colonies  were,  as 
to  some  objects,  which  he  has  not  explained,  and  to  some  extent, 
which  he  has  not  defined,  "  one  people."  This  is  not  only  plainly 
inferable  from  the  general  scope  of  the  book,  but  is  expressly 
asserted  in  the  following  passage :  "  But  although  the  colonies 
were  independent  of  each  other  in  respect  to  their  domestic 
jconcerns,  they  were  not  wholly  alien  to  each  other.  On  the 
contrary,  they  were  fellow-subjects,  and  for  many  purposes  one 
people.  Every  colonist  had  a  right  to  inhabit,  if  he  pleased, 
in  any  other  colony,  and  as  a  British  subject  he  was  capable  of 
inheriting  lands  by  descent  in  every  other  colony.  The  com- 
mercial intercourse  of  the  colonies  too  was  regulated  by  the 
general  laws  of  the  British  empire,  and  could  not  be  restrained 
or  obstructed  by  colonial  legislation.  The  remarks  of  Mr. 
Chief  Justice  Jay  are  equally  just  and  striking :  'All  the  people 
of  this  country  were  then  subjects  of  the  king  of  Great  Britain, 
and  owed  allegiance  to  him,  and  all  the  civil  authority  then 
existing  or  exercised  here  flowed  from  the  head  of  the  British 
empire.  They  were  in  a  strict  sense  fellow-subjects,  and  in  a 
variety  of  respects  one  people.  When  the  revolution  com- 
menced, the  patriots  did  not  assert  that  only  the  same  aflinity 
and  social  connexion  subsisted  between  the  people  of  the  colo- 
nies, which  subsisted  between  the  people  of  Gaul,  Britain  and 
Spain,  while  Roman  provinces,  to  wit,  only  that  affinity  and 
social  connexion  which  results  from  the  mere  circumstance  of 
being  governed  by  the  same  prince.'  ' 

In  this  passage  the  author  takes  his  ground  distinctly  and 
boldly.  The  first  idea  suggested  by  the  perusal  of  it  is,  that 
he  discerned  very  clearly  the  necessity  of  establishing  his  posi- 
tion, but  did  not  discern  quite  so  clearly  by  what  process  of 
reasoning  he  was  to  accomplish  it.  If  the  passage  stood  alone, 
it  would  be  fair  to  suppose  that  he  did  not  *design  to  r  *-.-.-, 
extend  the  idea  of  a  unity  among  the  people  of  the 
colonies  beyond  the  several  particulars  which  he  has  enume- 
rated. Justice  to  him  requires  that  we  should  suppose  this ; 
for,  if  it  had  been  otherwise,  he  would  scarcely  have  failed  to 
support  his  opinion  by  pointing  out  some  one  of  the  "many 
purposes,"  for  which  the  colonies  were,  in  his  view  of  them, 
"  one  people."  The  same  may  be  said  of  Mr.  Chief  Justice 


11  TRUE  NATURE  AND  CHARACTER  OF 

Jay.  He  also  has  specified  several  particulars  in  which  he 
supposed  this  unity  to  exist,  and  arrives  at  the  conclusion,  that 
the  people  of  the  several  colonies  were,  "  in  a  variety  of  respects, 
one  people."  In  what  respect  they  were  "one,"  except  those 
which  he  has  enumerated,  he  does  not  say,  and  of  course  it  is 
fair  to  presume  that  he  meant  to  rest  the  justness  of  his  con- 
clusion upon  them  alone.  The  historical  facts  stated  by  both 
of  these  gentlemen  are  truly  stated ;  but  it  is  surprising  that  it 
did  not  occur  to  such  cool  reasoners,  that  every  one  of  them  is 
the  result  of  the  relation  between  the  colonies  and  the  mother 
country,  and  not  the  result  of  the  relation  between  the  colonies 
themselves.  Every  British  subject,  whether  born  in  England 
proper  or  in  a  colony,  has  a  right  to  reside  any  where  within 
the  British  realm;  and  this  by  the  force  of  British  laws.  Such 
is  the  right  of  every  Englishman,  wherever  he  may  be  found. 
As  to  the  right  of  the  colonist  to  inherit  lands  by  descent  in 
any  other  colony  than  his  own,  our  author  himself  informs  us 
that  it  belonged  to  him  "  as  a  British  subject."  That  right, 
indeed,  is  a  consequence  of  his  allegiance.  By  the  policy  of 
the  British  constitution  and  laws,  it  is  not  permitted  that  the 
soil  of  her  territory  should  belong  to  any  from  whom  she  cannot 
demand  all  the  duties  of  allegiance.  This  allegiance  is  the 
same  in  all  the  colonies  as  it  is  in  England  proper;  and, 
wherever  it  exists,  the  correspondent  right  to  own  and  inherit 
the  soil  attaches.  The  right  to  regulate  commercial  intercourse 
among  her  colonies  belongs,  of  course,  to  the  parent  country, 
unless  she  relinquishes  it  by  some  act  of  her  own ;  and  no  such 
act  is  shown  in  the  present  case.  On  the  contrary,  although 
that  right  was  resisted  for  a  time  by  some  of  the  American 
colonies,  it  was  finally  yielded,  as  our  author  himself  informs 
us,  by  all  those  of  New  England,  and  I  am  not  informed  that 
it  was  denied  by  any  other.  Indeed,  the  supremacy  of  par- 
liament, in  most  matters  of  legislation  which  concerned  the 
colonies,  was  generally — nay,  universally — admitted,  up  to  the 
very  eve  of  the  revolution.  It  is  true,  the  right  to  tax  the 
colonies  was  denied,  but  this  was  upon  a  wholly  different  prin- 
ciple. It  was  the  right  of  every  British  subject  to  be  exempt 
from  taxation,  except  by  his  own  consent ;  and  as  the  colonies 


OUR  FEDERAL   GOVERNMENT.  H 

were  not,  and  from  their  local  situation  could  not  be,  *re- 

r  *i2~i 

presented  in  parliament,  the  right  of  that  body  to  tax  L 
them  was  denied,  upon  a  fundamental  principle  of  English 
liberty.  But  the  right  of  the  mother  country  to  regulate  com- 
merce among  her  colonies  is  of  a  different  character,  and  it 
never  was  denied  to  England  by  her  American  colonies,  so  long 
as  a  hope  of  reconciliation  remained  to  them.  In  like  manner, 
the  facts  relied  on  by  Mr.  Jay,  that  "  all  the  people  of  this 
country  were  then  subjects  of  the  king  of  Great  Britain,  and 
owed  allegiance  to  him,"  and  that  "  all  the  civil  authority  then 
existing  or  exercised  here  flowed  from  the  head  of  the  British 
empire,"  are  but  the  usual  incidents  of  colonial  dependence,  and 
are  by  no  means  peculiar  to  the  case  he  was  considering.  They 
do,  indeed,  prove  a  unity  between  all  the  colonies  and  the  mother 
country,  and  show  that  these,  taken  altogether,  are,  in  the  strict- 
est sense  of  the  terms,  "  one  people ;"  but  I  am  at  a  loss  to 
perceive  how  they  prove,  that  two  or  more  parts  or  subdivisions 
of  the  same  empire  necessarily  constitute  "one  people."  If 
this  be  true  of  the  colonies,  it  is  equally  true  of  any  two  or 
more  geographical  sections  of  England  proper ;  for  every  one 
of  the  reasons  assigned  applies  as  strictly  to  this  case  as  to  that 
of  the  colonies.  Any  two  countries  may  be  "one  people,"  or 
"  a  nation  de  facto,"  if  they  can  be  made  so  by  the  facts  that 
their  people  are  "  subjects  of  the  king  of  Great  Britain,  and 
owe  allegiance  to  him,"  and  that  "all  the  civil  authority  exer- 
cised therein  flows  from  the  head  of  the  British  empire." 

It  is  to  be  regretted  that  the  author  has  not  given  us  his  own 
views  of  the  sources  from  which  these  several  rights  and  powers 
were  derived.  If  they  authorize  his  conclusion,  that  there  was 
any  sort  of  unity  among  the  people  of  the  several  colonies,  dis- 
tinct from  their  common  connexion  with  the  mother  country, 
as  parts  of  the  same  empire,  it  must  be  because  they  flowed 
from  something  in  the  relation  betwixt  the  colonies  themselves, 
and  not  from  their  common  relation  to  the  parent  country.  Nor 
is  it  enough  that  these  rights  and  powers  should,  in  point  of 
fact,  flow  from  the  relation  of  the  colonies  to  one  another ;  they 
must  be  the  necessary  result  of  their  political  condition.  Even 
admitting,  then,  that  they  would,  under  any  state  of  circum- 
stances, warrant  the  conclusion  which  the  author  has  drawn 


•^2  TRUE  NATURE  AND  CHARACTER  OF 

from  them,  it  does  not  follow  that  the  conclusion  is  correctly 
drawn  in  the  present  instance.  For  aught  that  he  has  said  to 
the  contrary,  the  right  of  every  colonist  to  inhabit  and  inherit 
lands  in  every  colony,  whether  his  own  or  not,  may  have  been 
derived  from  positive  compact  and  agreement  among  the  colo- 
nies themselves ;  and  this  presupposes  that  they  were  distinct 
m  o  -i  aad  separate,  and  not  "  one  people."  *And  so  far  as 
the  rights  of  the  mother  country  are  concerned,  they 
existed  in  the  same  form,  and  to  the  same  extent,  over  every 
other  colony  of  the  empire.  Did  this  make  the  people  of  all 
the  colonies  "  one  people  ?"  If  so,  the  people  of  Jamaica,  the 
British  East  Indian  possessions  and  the  Canadas  are,  for  the 
very  same  reason,  "one  people"  at  this  day.  If  a  common 
allegiance  to  a  common  sovereign,  and  a  common  subordination 
to  his  jurisdiction,  are  sufficient  to  make  the  people  of  different 
countries  "one  people,"  it  is  not  perceived  (with  all  deference 
to  Mr.  Chief  Justice  Jay)  why  the  people  of  Gaul,  Britain  and 
Spain  might  not  have  been  "one  people,"  while  Roman  pro- 
vinces, notwithstanding  "the  patriots"  did  not  say  so.  The 
general  relation  between  colonies  and  the  parent  country  is  as 
well  settled  and  understood  as  any  other,  and  it  is  precisely  the 
same  in  all  cases,  except  where  special  consent  and  agreement 
may  vary  it.  Whoever,  therefore,  would  prove  that  any  pecu- 
liar unity  existed  between  the  American  colonies,  is  bound  to 
show  something  in  their  charters,  or  some  peculiarity  in  their 
condition,  to  exempt  them  from  the  general  rule.  Judge  Story 
was  too  well  acquainted  with  the  state  of  the  facts  to  make  any 
such  attempt  in  the  present  case.  The  congress  of  the  nine 
colonies,  which  assembled  at  New  York,  in  October,  1765,  de- 
clare, that  the  colonists  "  owe  the  same  allegiance  to  the  crown 
of  Great  Britain,  that  is  owing  from  his  subjects  born  within 
the  realm,  and  all  due  subordination  to  that  august  body,  the 
parliament  of  Great  Britain."  "  That  the  colonists  are  entitled 
to  all  the  inherent  rights  and  liberties  of  his  [the  king's]  natural 
born  subjects  within  the  kingdom  of  Great  Britain."  We  have 
here  an  all-sufficient  foundation  of  the  right  of  the  crown  to 
regulate  commerce  among  the  colonies,  and  of  the  right  of  the 
colonists  to  inhabit  and  to  inherit  land  in  each  and  all  the  colo- 
nies. They  were  nothing  more  than  the  ordinary  rights  and 


OUR  FEDERAL   GOVERNMENT.  13 

liabilities  of  every  British  subject ;  and,  indeed,  the  most  that 
the  colonies  ever  contended  for  was  an  equality,  in  these  respects, 
with  the  subjects  born  in  England.  The  facts,  therefore,  upon 
which  our  author's  reasoning  is  founded,  spring  from  a  different 
source  from  that  from  which  he  is  compelled  to  derive  them,  in 
order  to  support  his  conclusion. 

So  far  as  the  author's  argument  is  concerned,  the  subject 
might  be  permitted  to  rest  here.  Indeed,  one  would  be  tempted 
to  think,  from  the  apparent  carelessness  and  indifference  with 
which  the  argument  is  urged,  that  he  himself  did  not  attach  to 
it  any  particular  importance.  It  is  not  his  habit  to  dismiss 
grave  matters  with  such  slight  examination,  nor  does  it  consist 

with   the    character  of  his  mind  to  be  satisfied  *with 

r*14T 
reasoning  which  bears  even  a  doubtful  relation  to  his    L      J 

subject.  Neither  can  it  be  supposed  that  he  would  be  willing 
to  rely  on  the  simple  ipse  dixit  of  Chief  Justice  Jay,  unsupported 
by  argument,  unsustained  by  any  references  to  historical  facts, 
and  wholly  indefinite  in  extent  and  bearing.  Why,  then,  was 
this  passage  written  ?  As  mere  history,  apart  from  its  bearing 
on  the  Constitution  of  the  United  States,  it  is  of  no  value  in 
this  work,  and  is  wholly  out  of  place.  All  doubts  upon  this 
point  will  be  removed  in  the  progress  of  this  examination.  The 
great  effort  of  the  author,  throughout  his  entire  work,  is  to 
establish  the  doctrine,  that  the  Constitution  of  the  United 
States  is  a  government  of  "the  people  of  the  United  States," 
as  contradistinguished  from  the  people  of  the  several  States ;  or, 
in  other  words,  that  it  is  a  consolidated,  and  not  a  federative 
system.  His  construction  of  every  contested  federal  power 
depends  mainly  upon  this  distinction ;  and  hence  the  necessity 
of  establishing  a  one-ness  among  the  people  of  the  several  colo- 
nies, prior  to  the  revolution.  It  may  well  excite  our  surprise, 
that  a  proposition  so  necessary  to  the  principal  design  of  the 
work,  should  be  stated  with  so  little  precision,  and  dismissed 
with  so  little  effort  to  sustain  it  by  argument.  One  so  well  in- 
formed as  Judge  Story,  of  the  state  of  political  opinions  in  this 
country,  could  scarcely  have  supposed  that  it  would  be  received 
as  an  admitted  truth,  requiring  no  examination.  It  enters  too 
deeply  into  grave  questions  of  constitutional  law,  to  be  -so  sum- 
marily disposed  of.  We  should  not  be  content,  therefore,  with 
2 


14  TRUE  NATURE  AND  CHARACTER  OF 

simply  proving  that  the  author  has  assigned  no  sufficient  reason 
for  the -opinion  he  has  advanced.  The  subject  demands  of  us 
the  still  farther  proof  that  his  opinion  is,  in  fact,  erroneous,  and 
that  it  cannot  be  sustained  by  any  other  reasons. 

In  order  to  constitute  "one  people,"  in  a  political  sense,  of 
the  inhabitants  of  different  countries,  something  more  is  neces- 
sary than  that  they  should  owe  a  common  allegiance  to  a  com- 
mon sovereign.  Neither  is  it  sufficient  that,  in  s/)me  particulars, 
they  are  bound  alike,  by  laws  which  that  sovereign  may  pre- 
scribe ;  nor  does  the  question  depend  on  geographical  relations. 
The  inhabitants  of  different  islands  may  be  one  people,  and 
those  of  contiguous  countries  may  be,  as  we  know  they  in  fact 
are,  different  nations.  By  the  term  "people,"  as  here  used,  we 
do  not  mean  merely  a  number  of  persons.  We  mean  by  it  a 
political  corporation,  the  members  of  which  owe  a  common 
allegiance  to  a  common  sovereignty,  and  do  not  owe  any  alle- 
giance which  is  not  common;  who  are  bound  by  no  laws  except 
such  as  that  sovereignty  may  prescribe  ;  who  owe  to  one  another 
reciprocal  obligations ;  who  possess  common  political  interests  ; 
who  are  liable  to  *common  political  duties  ;  and  who  can 
*•  J  'exert  no  sovereign  power  except  in  the  name  of  the 
whole.  Any  thing  short  of  this,  would  be  an  imperfect  defini- 
tion of  that  political  corporation  which  we  call  "a  people." 

Tested  by  this  definition,  the  people  of  the  American  colonies 
were,  in  no  conceivable  sense,  "  one  people. ' '  They  owed,  indeed, 
allegiance  to  the  British  king,  as  the  head  of  each  colonial  gov- 
ernment, and  as  forming  a  part  thereof;  but  this  allegiance 
was  exclusive,  in  each  colony,  to  its  own  government,  and,  con- 
sequently, to  the  king  as  the  head  thereof,  and  was  not  a  com- 
mon allegiance  of  the  people  of  all  the  colonies,  to  a  common 
head.*  These  colonial  governments  were  clothed  with  the 
sovereign  power  of  making  laws,  and  of  enforcing  obedience  to 
them,  from  their  own  people.  The  people  of  one  colony  owed 
no  allegiance  to  the  government  of  any  other  colony,  and  were 

*  The  resolutions  of  Virginia,  in  1765,  show  that  she  considered  herself 
merely  as  an  appendage  of  the  British  crown;  that  her  legislature  was  alone 
authorized -to  tax  her;  and  that  she  had  a  right  to  call  on  her  king,  who  was 
also  king  of  England,  to  protect  her  against  the  usurpations  of  the  British 
parliament. 


OUR  FEDERAL   GOVERNMENT.  15 

not  bound  by  its  laws.  The  colonies  had  no  common  legisla- 
ture, no  common  treasury,  no  common  military  power,  no  com- 
mon judicatory.  The  people  of  one  colony  were  not  liable  to 
pay  taxes  to  any  other  colony,  nor  to  bear  arms  in  its  defence ; 
they  had  no  right  to  vote  in  its  elections ;  no  influence  nor  con- 
trol in  its  municipal  government,  no  interest  in  its  municipal 
institutions.  There  was  no  prescribed  form  by  which  the  colo- 
nies could  act  together,  for  any  purpose  whatever ;  they  were 
not  known  as  "  one  people  "  in  any  one  function  of  government. 
Although  they  were  all,  alike,  dependencies  of  the  British 
•  crown,  yet,  even  in  the  action  of  the  parent  country,  in  regard 
to  them,  they  were  recognized  as  separate  and  distinct.  They 
were  established  at  different  times,  and  each  under  an  authority 
from  the  crown,  which  applied  to  itself  alone.  They  were  not 
even  alike  in  their  organization.  Some  were  provincial,  some 
proprietary,  and  some  charter  governments.  Each  derived  its 
form  of  government  from  the  particular  instrument  establishing 
it,  or  from  assumptions  of  power  acquiesced  in  by  the  crown, 
without  any  connexion  with,  or  relation  to,  any  other.  They 
stood  upon  the  same  footing,  in  every  respect,  with  other  British 
colonies,  with  nothing  to  distinguish  their  relation  either  to  the 
parent  country  or  to  one  another.  The  charter  of  any  one  of 
them  might  have  been  destroyed,  without  in  any  manner  affect- 
ing the  rest.  In  point  of  fact,  the  charters  of  nearly  all  of 
them  were  altered,  from  time  to  time,  and  the  whole  character 
*of  their  governments  changed.  These  changes  were 
made  in  each  colony  for  itself  alone,  sometimes  by  its  *-  •* 
own  action,  sometimes  by  the  power  and  authority  of  the 
crown  ;  but  never  by  the  joint  agency  of  any  other  colony,  and 
never  with  reference  to  the  wishes  or  demands  of  any  other 
colony.  Thus  they  were  separate  and  distinct  in  their  crea- 
tion ;  separate  and  distinct  in  the  forms  of  their  governments ; 
separate  and  distinct  in  the  changes  and  modifications  of  their 
governments,  which  were  made  from  time  to  time;  separate 
and  distinct  in  political  functions,  in  political  rights,  and  in 
political  duties. 

The  provincial  government  of  Virginia  was  the  first  estab- 
lished. The  people  of  Virginia  owed  allegiance  to  the  British 
king,  as  the  head  of  their  own  local  government.  The  authority 


IQ          TRUE  NATURE  AND  CHARACTER  OF 

of  that  government  was  confined  -within  certain  geographical 
limits,  known  as  Virginia,  and  all  who  lived  within  those 
limits  were  "  one  people."  When  the  colony  of  Plymouth  was 
subsequently  settled,  were  the  people  of  that  colony  "one" 
with  the  people  of  Virginia?  When,  long  afterwards,  the 
proprietary  government  of  Pennsylvania  was  established,  were 
the  followers  of  William  Penn  "one"  with  the  people  of  Ply- 
mouth and  Virginia  ?  If  so,  to  which  government  was  their 
allegiance  due  ?  Virginia  had  a  government  of  her  own,  Penn- 
sylvania a  government  of  her  own,  and  Massachusetts  a  govern- 
ment of  her  own.  The  people  of  Pennsylvania  could  not  be  * 
equally  bound  by  the  laws  of  all  three  governments,  because 
those  laws  might  happen  to  conflict ;  they  could  not  owe  the 
duties  of  citizenship  to  all  of  them  alike,  because  they  might 
stand  in  hostile  relations  to  one  another.  Either,  then,  the 
government  of  Virginia,  which  originally  extended  over  the 
whole  territory,  continued  to  be  supreme  therein,  (subject  only 
to  its  dependence  upon  the  British  crown,)  or  else  its  supremacy 
was  yielded  to  the  new  government.  Every  one  knows  that 
this  last  was  the  case ;  that  within  the  territory  of  the  new 
government  the  authority  of  that  government  alone  prevailed. 
How  then  could  the  people  of  this  new  government  of  Penn- 
sylvania be  said  to  be  "  one  "  with  the  people  of  Virginia,  when 
they  were  not  citizens  of  Virginia,  owed  her  no  allegiance  and 
no  duty,  and  when  their  allegiance  to  another  government 
might  place  them  in  the  relation  of  enemies  of  Virginia  ? 

In  farther  illustration  of  this  point,  let  us  suppose  that  some 
one  of  the  colonies  had  refused  to  unite  in  the  declaration  of 
independence ;  what  relation  would  it  then  have  held  to  the 
others?  Not  having  disclaimed  its  allegiance  to  the  British 
crown,  it  would  still  have  continued  to  be  a  British  colony,  sub- 
ject  to  the  authority  of  the  parent  *country,  in  all 
-"  respects  as  before.  bould  the  other  colonies  have 
rightfully  compelled  it  to  unite  with  them  in  their  revolution- 
ary purposes,  on  the  ground  that  it  was  part  and  parcel  of 
the  "one  people,"  known  as  the  people  of  the  colonies?  No 
such  right  was  ever  claimed,  or  dreamed  of,  and  it  will  scarcely 
be  contended  for  now,  in  the  face  of  the  known  history  of  the 
time.  Such  recusant  colony  would  have  stood  precisely  as  did 


OUR  FEDERAL  GOVERNMENT.  17 

the  Canadas,  and  every  other  part  of  the  British  empire.  The 
colonies,  which  had  declared  war,  would  have  considered  its 
people  as  enemies,  hut  would  not  have  had  a  right  to  treat 
them  as  traitors,  or  as  disobedient  citizens  resisting  their 
authority.  To  what  purpose,  then,  were  the  people  of  the 
colonies  "one  people,"  if,  in  a  case  so  important  to  the  com- 
mon welfare,  there  was  no  right  in  all  the  people  together,  to 
coerce  the  members  of  their  own  community  to  the  perform- 
ance of  a  common  duty  ? 

It  is  thus  apparent  that  the  people  of  the  colonies  were  not 
"  one  people,"  as  to  any  purpose  involving  allegiance  on  the 
one  hand,  or  protection  on  the  other.  What  then,  I  again  ask, 
are  the  "many  purposes"  to  which  the  author  alludes?  It  is 
certainly  incumbent  on  him  who  asserts  this  identity,  against  the 
inferences  most  naturally  deducible  from  the  historical  facts,  to 
show  at  what  time,  by  what  process,  and  for  what  purposes,  it 
was  effected.  He  claims  too  much  consideration  for  his  per- 
sonal authority,  when  he  requires  his  readers  to  reject  the  plain 
information  of  history,  in  favor  of  his  bare  assertion.  The 
charters  of  the  colonies  prove  no  identity  between  them,  but  the 
reverse ;  and  it  has  already  been  shown  that  this  identity  is  not 
the  necessary  result  of  their  common  relation  to  the  mother 
country.  By  what  other  means  they  came  to  be  "one,"  in  any 
intelligible  and  political  sense,  it  remains  for  the  author  to 
explain. 

If  these  views  of  the  subject  be  not  convincing,  the  author 
himself  has  furnished  proof,  in  all  needful  abundance,  of  the 
incorrectness  of  his  own  conclusion.  He  tells  us  that,  "  though 
the  colonies  had  a  common  origin,  and  owed  a  common  alle- 
giance, and  the  inhabitants  of  each  were  British  subjects,  they 
had  no  direct  political  connexion  with  each  other.  Each  was 
independent  of  all  the  others ;  each,  in  a  limited  sense,  was 
sovereign  within  its  own  territory.  There  was  neither  alliance 
nor  confederacy  between  them.  The  assembly  of  one  province 
could  not  make  laws  for  another,  nor  confer  privileges  which 
were  to  be  enjoyed  or  exercised  in  another,  farther  than  they 
could  be  in  any  independent  foreign  state.  As  colonies  they 
were  also  excluded  from  all  connexion  with  foreign  states. 
They  were  known  only  as  dependencies,  and  they  followed  the 


17          TRUE  NATURE  AND  CHARACTER  OF 

fate  of  the  parent  country,  *both  in  peace  and  war, 
J  -without  having  assigned  to  them,  in  the  intercourse  or 
diplomacy  of  nations,  any  distinct  or  independent  existence. 
They  did  not  possess  the  power  of  forming  any  league  or  treaty 
among  themselves,  which  would  acquire  an  obligatory  force, 
zvithout  the  assent  of  the  parent  State.  And  though  their  mutual 
wants  and  necessities  often  induced  them  to  associate  for  com- 
mon purposes  of  defence,  these  confederacies  were  of  a  casual 
and  temporary  nature,  and  were  allowed  as  an  indulgence, 
rather  than  as  a  right.  They  made  several  efforts  to  procure 
the  establishment  of  some  general  superintending  government 
over  them  all ;  but  their  own  differences  of  opinion,  as  well  as 
the  jealousy  of  the  crown,  made  these  efforts  abortive." 

The  English  language  affords  no  terms  stronger  than  those  which 
are  here  used  to  convey  the  idea  of  separateness,  distinctness  and 
independence,  among  the  colonies.  No  commentary  could  make 
the  description  plainer,  or  more  full  and  complete.  The  unity, 
contended  for  by  the  author,  nowhere  appears,  but  is  distinctly 
disaffirmed  in  every  sentence.  The  colonies  were  not  only  dis- 
tinct in  their  creation,  and  in  the  powers  and  faculties  of  their 
governments,  but  there  was  not  even  "an  alliance  or  con- 
federacy between  them."  They  had  no  "  general  superintending 
government  over  them  all,"  and  tried  in  vain  to  establish  one. 
Each  was  "independent  of  all  the  others,"  having  its  own 
legislature,  and  without  power  to  confer  either  right  or  privilege 
beyond  its  own  territory.  "Each,  in  a  limited  sense,  was 
sovereign  within  its  own  territory ;"  and  to  sum  up  all,  in  a 
single  sentence,  "they  had  no  direct  political  connexion  with 
each  other!"  The  condition  of  the  colonies  was,  indeed,  anom- 
alous, if  our  author's  view  of  it  be  correct.  They  presented  the 
singular  spectacle  of  "  one  people,"  or  political  corporation,  the 
members  of  which  had  "  no  direct  political  connexion  with  each 
other,"  and  who  had  not  the  power  to  form  such  connexion, 
even  "  by  league  or  treaty  among  themselves." 

This  brief  review  will,  it  is  believed,  be  sufficient  to  convince 
the  reader  that  our  author  has  greatly  mistaken  the  real  con- 
dition and  relation  of  the  colonies,  in  supposing  that  they 
formed  "one  people,"  in  any  sense,  or  for  any  purpose  what- 
ever. He  is  entitled  to  credit,  however,  for  the  candor  with 


OUR  FEDERAL   GOVERNMENT.  lg 

which  he  has  stated  the  historical  facts.  Apart  from  all  other 
sources  of  information,  his  book  affords  to  every  reader  abundant 
materials  for  the  formation  of  his  own  opinion,  and  for  enabling 
him  to  decide  satisfactorily  whether  the  author's  inferences  from 
the  facts,  which  he  himself  has  stated,  be  warranted  by  them, 
or  not. 

*In  the  execution  of  the  second  division  of  his  plan, 
very  little  was  required  of  the  author,  either  as  a  his-  *- 
torian  or  as  a  commentator.  Accordingly,  he  has  alluded  but 
slightly  to  the  condition  of  the  colonies  during  the  existence  of 
the  revolutionary  government,  and  has  sketched  with  great  ra- 
pidity, yet  sufficiently  in  detail,  the  rise,  decline  and  fall  of  the 
Confederation.  Even  here,  however,  he  has  fallen  into  some 
errors,  and  has  ventured  to  express  decisive  and  important  opin- 
ions, without  due  warrant.  The  desire  to  make  "  the  people  of 
the  United  States"  one  consolidated  nation  is  so  strong  and  pre- 
dominant, that  it  breaks  forth,  often  uncalled  for,  in  every  part 
of  his  work.  He  tells  us  that  the  first  congress  of  the  revolu- 
tion was  "a  general  or  national  government;"  that  it  "was 
organized  under  the  auspices  and  with  the  consent  of  the  people, 
acting  directly  in  their  primary,  sovereign  capacity,  and  with- 
out the  intervention  of  the  functionaries  to  whom  the  ordinary 
powers  of  government  were  delegated  in  the  colonies.  He  ac- 
knowledges that  the  powers  of  this  congress  were  but  ill-defined ; 
that  many  of  them  were  exercised  by  mere  usurpation,  and  were 
acquiesced  in  by  the  people,  only  from  the  confidence  reposed 
in  the  wisdom  and  patriotism  of  its  members,  and  because  there 
was  no  proper  opportunity,  during  the  pressure  of  the  war,  to 
raise  nice  questions  of  the  powers  of  government.  And  yet  he 
infers,  from  the  exercise  of  powers  thus  ill-defined,  and,  in  great 
part,  usurped,  that  "  from  the  moment  of  the  declaration  of  in- 
dependence, if  not  for  most  purposes  at  an  antecedent  period, 
the  united  colonies  must  be  considered  as  being  a  nation  de 
facto"  &c. 

A  very  slight  attention  to  the  history  of  the  times  will  place 
this  subject  in  its  true  light.  The  colonies  complained  of  op- 
pressions from  the  mother  country,  and  were  anxious  to  devise 
some  means  by  which  their  grievances  might  be  redressed. 
These  grievances  were  common  to  all  of  them ;  for  England 


19  TRUE  NATURE  AND  CHARACTER  OF 

made  no  discrimination  between  them,  in  the  general  course  of 
her  colonial  policy.  Their  rights,  as  British  subjects,  had  never 
been  \vell  defined ;  and  some  of  the  most  important  of  those 
rights,  as  asserted  by  themselves,  had  been  denied  by  the 
British  crown.  As  early  as  1765  a  majority  of  the  colonies  had 
met  together  in  congress,  or  convention,  in  New  York,  for  the 
purpose  of  deliberating  on  these  grave  matters  of  common  con- 
cern ;  and  they  then  made  a  formal  declaration  of  what  they  con- 
sidered their  rights,  as  colonists  and  British  subjects.  This 
measure,  however,  led  to  no  redress  of  their  grievances.  On 
the  contrary,  the  subsequent  measures  of  the  British  govern- 
ment gave  new  and  just  causes  of  complaint ;  so  that,  in  1774, 
it  was  deemed  necessary  that  *the  colonies  should  again 
""  J  meet  together,  in  order  to  consult  upon  their  general 
condition,  and  provide  for  the  safety  of  their  common  rights. 
Hence  the  congress  which  met  at  Carpenters'  Hall,  in  Phila- 
delphia, on  the  5th  of  September,  1774.  It  consisted  of  dele- 
gates from  New  Hampshire,  Massachusetts  Bay,  Rhode  Island 
and  Providence  Plantations,  Connecticut,  from  the  city  and 
county  of  New  York,  and  other  counties  in  the  province  of  New 
York,  New  Jersey,  Pennsylvania,  Newcastle,  Kent  and  Sussex 
in  Delaware,  Maryland,  Virginia  and  South  Carolina.  North 
Carolina  was  not  represented  until  the  14th  September,  and 
Georgia  not  at  all.  It  is  also  apparent,  that  New  York  was 
not  represented  as  a  colony,  but  only  through  certain  portions 
of  her  people  ;*  in  like  manner,  Lyman  Hall  was  admitted  to 

*  The  historical  fact  here  stated,  is  perfectly  authenticated,  and  has  never 
been  disputed ;  nevertheless,  the  following  extracts  from  the  Journals  of  Con- 
gress, may  not  be  out  of  place. 

"  Wednesday,  September  14,  1774.  Henry  Wisner,  a  delegate  from  the  county 
of  Oranffe,  in  the  colony  of  New  York,  appeared  at  congress,  and  produced  a  cer- 
tificate of  his  election  by  the  said  county,  which  being  read  and  approved,  he 
took  his  seat  in  congress  as  a  deputy  from  the  colony  of  New  York." 

"Monday,  September  26,  1774.  John  Hening,  Esq.,  a  deputy  from  Oranffe 
county,  in  the  colony  of  New  York,  appeared  this  morning,  and  took  his  seat  as 
a  deputy  from  that  colony." 

"  Saturday,  October  1,  1774.  Simon  Bocrum,  Esq.,  appeared  in  congress  as 
a  deputy  from  King's  county,  in  the  colony  of  New  York,  and  produced  the  cre- 
dentials of  his  election,  which  being  read  and  approved,  he  took  his  seat  as  a 
delegate  from  that  colony." 

It  is  evident  from  these  extracts,  that  although  the  delegates  from  certain 


OUR   FEDERAL   GOVERNMENT.  20 

his  seat,  in  the  succeeding  congress,  as  a  delegate  from  the 
parish  of  St.  Johns,  in  Georgia,  although  he  declined  to  vote  on 
any  question  requiring  a  majority  of  the  colonies  to  carry  it, 
because  he  was  not  the  representative  of  a  colony.  This  congress 
passed  a  variety  of  important  resolutions,  between  September, 
1774,  and  the  22d  October,  in  the  same  year ;  during  all  which 
time  Georgia  was  not  represented  at  all ;  for  even  the  parish  of 
St.  John's  did  not  appoint  a  representative  till  May,  1775.  In 
point  of  fact,  the  congress  was  a  deliberative  and  advisory  body, 
and  nothing  more ;  and,  for  this  reason,  it  was  not  deemed  im- 
portant, or,  at  least,  not  indispensable,  that  all  the  colonies 
should  be  represented,  since  the  resolutions  of  congress  had  no 
obligatory  force  *whatever.  It  was  appointed  for  the 
sole  purpose  of  taking  into  consideration  the  general  "- 
condition  of  the  colonies,  and  of  devising  and  recommending 
proper  measures,  for  the  security  of  their  rights  and  interests. 
For  these  objects  no  precise  powers  and  instructions  were  neces- 
sary, and  beyond  them  none  were  given.  Neither  does  it  ap- 
pear that  any  precise  time  was  assigned  for  the  duration  of  con- 
gress. The  duty  with  which  it  was  charged  was  extremely 
simple  ;  and  it  was  taken  for  granted  that  it  would  dissolve  itself 
as  soon  as  that  duty  should  be  performed.* 

portions  of  the  people  of  New  York  were  admitted  to  seats  in  congress  as  dele- 
gates from  the  colony,  yet,  in  point  of  fact,  they  were  not  elected  as  such,  neither 
were  they  ever  recognized  as  such,  by  New  York  herself.  The  truth  is,  as  will 
presently  appear,  the  majority  of  her  people  were  not  ripe  for  the  measures 
pursued  by  congress,  and  would  not  have  agreed  to  appoint  delegates  for  the 
whole  colony. 

*A  reference  to  the  credentials  of  the  congress  of  1774  will  show,  beyond 
all  doubt,  the  true  character  of  that  assembly.  The  following  are  extracts 
from  them. 

New  Hampshire.  "  To  devise,  consult  and  adopt  such  measures  as  may  have 
the  most  likely  tendency  to  extricate  the  colonies  from  their  present  difficulties; 
to  secure  and  perpetuate  their  rights,  liberties  and  privileges,  and  to  restore 
that  peace,  harmony  and  mutual  confidence,  which  once  happily  subsisted  be- 
tween the  parent  country  and  her  colonies." 

Massachusetts.  "  To  consult  on  the  present  state  of  the  colonies,  and  the 
miseries  to  which  they  are,  and  must  be  reduced,  by  the  operation  of  certain 
acts  of  parliament  respecting  America;  and  to  deliberate  and  determine  upon 
wise  and  proper  measures  to  be  by  them  recommended  to  all  the  colonies,  for  the 
recovery  and  establishment  of  their  just  rights  and  liberties,  civil  and  religious, 
and  the  restoration  of  union  and  harmony  between  Great  Britain  and  the  colo- 
nies, most  ardently  desired  by  all  good  men." 


21  TRUE  NATURE  AND  CHARACTER  OF 

r*99-i       It  is  perfectly  apparent  that  the  mere  *  appointment 
'"     of  this  congress  did  not  make  the  people  of  all  the  colo- 

Rhode  Island.  "  To  consult  on  proper  measures  to  obtain  a  repeal  of  the 
several  acts  of  the  British  parliament  for  levying  taxes  on  his  majesty's  sub- 
jects in  America  without  their  consent,  and  upon  proper  measures  to  establish 
the  rights  and  liberties  of  the  colonies  upon  a  just  and  solid  foundation,  agree- 
ably to  instructions  given  by  the  general  assembly." 

Connecticut.  "To  consult  and  advise  on  proper  measures  for  advancing 
the  best  good  of  the  colonies,  and  such  conferences  to  report  from  time  to  time 
to  the  colonial  house  of  representatives." 

New  York.  Only  a  few  of  her  counties  were  represented,  some  by  deputies 
authorized  to  "  represent,"  and  some  by  deputies  authorized  to  "  attend  con- 
gress." 

New  Jersey.     "  To  represent  the  colony  in  the  general  congress." 

Pennsylvania.  <l  To  form  and  adopt  a  plan  for  the  purposes  of  obtaining  re- 
dress of  American  grievances,  ascertaining  American  rights  upon  the  most  solid 
and  constitutional  principles,  and  for  establishing  that  union  and  harmony  be- 
tween Great  Britain  and  the  colonies  which  is  indispensably  necessary  to  the 
welfare  and  happiness  of  both." 

Delaware.  "  To  consult  and  advise  with  the  deputies  from  the  other  colonies, 
to  determine  upon  all  such  prudent  and  lawful  measures  as  may  be  judged 
most  expedient  for  the  colonies  immediately  and  unitedly  to  adopt,  in  order  to 
obtain  relief  for  an  oppressed  people,(a)  and  the  redress  of  our  general  griev- 
ances." 

Maryland.  "  To  attend  a  general  congress,  to  effect  one  general  plan  of  con- 
duct operating  on  the  commercial  connexion  of  the  colonies  with  the  mother 
country,  for  the  relief  of  Boston  and  the  preservation  of  American  liberty." 

Virginia.  "To  consider  of  the  most  proper  and  effectual  manner  of  so  ope- 
rating on  the  commercial  connexion  of  the  colonies  with  the  mother  country, 
as  to  procure  redress  for  the  much  injured  province  of  Massachusetts  Bay,  to 
secure  British  America  from  the  ravage  and  ruin  of  arbitrary  taxes,  and  speedily 
to  procure  the  return  of  that  harmony  and  union,  so  beneficial  to  the  whole 
empire,  and  so  ardently  desired  by  all  British  America." 

North  Carolina.  "  To  take  such  measures  as  they  may  deem  prudent  to  ef- 
fect the  purpose  of  describing  with  certainty  the  rights  of  Americans,  repairing 
the  breach  made  in  those  rights,  and  for  guarding  them  for  the  future  from  any 
such  violations  done  under  the  sanction  of  public  authority."  For  these  pur- 
poses the  delegates  are  "  invested  with  such  powers  as  may  make  any  acts  done 
by  them  obligatory  in  honor,  on  every  inhabitant  hereof,  who  is  not  an  alien  to 
his  country's  good,  and  an  apostate  to  the  liberties  of  America." 

South  Carolina.  "  To  consider  the  acts  lately  passed,  and  bills  depending  in 
parliament  with  regard  to  the  port  of  Boston,  and  Colony  of  Massachusetts 
Bay;  which  acts  and  bills,  in  the  precedent  and  consequences,  affect  the  whole 
continent  of  America.  Also  the  grievances  under  which  America  labours,  by 
reason  of  the  several  acts  of  parliament  that  impose  taxes  or  duties  for  raising 

(a)  Massachusetts,  the  particular  wrongs  of  which  are  just  before  recited  at 
large. 


OUR  FEDERAL   GOVERNMENT.  22 

nies  "one  people,"  nor  a  "nation  *de facto,"  All  the  r*oo-| 
colonies  did  not  unite  in  the  appointment,  neither  as 
colonies  nor  by  any  portion  of  their  people  acting  in  their  pri- 
mary assemblies,  as  has  already  been  shown.  The  colonies 
were  not  independent,  and  had  not  even  resolved  to  declare 
themselves  so  at  any  future  time.  On  the  contrary,  they  were 
extremely  desirous  to  preserve  and  continue  their  connexion 
with  the  parent  country,  and  congress  was  charged  with  the 
duty  of  devising  such  measures  as  would  enable  them  to  do  so, 
without  involving  a  surrender  of  their  rights  as  British  subjects. 
It  is  equally  clear  that  the  powers,  with  which  congress  was 
clothed,  did  not  flow  from,  nor  constitute  "one  people,"  or  "na- 

a  revenue,  and  lay  unnecessary  restraints  and  burdens  on  trade :  and  of  the 
statutes,  parliamentary  acts  and  royal  instructions,  which  make  an  invidious 
distinction  between  his  majesty's  subjects  in  Great  Britain  and  America,  with 
full  power  and  authority  to  concert,  agree  to  and  prosecute  such  legal  mea- 
sures, as  in  the  opinion  of  the  said  deputies,  so  to  be  assembled,  shall  be  most 
likely  to  obtain  a  repeal  of  the  said  acts,  and  a  redress  of  those  grievances. 

[The  above  extracts  are  made  from  the  credentials  of  the  deputies  of  the 
several  colonies,  as  spread  upon  the  journal  of  congress,  according  to  a  copy  of 
that  journal  bound  (as  appears  by  a  gilt  label  on  the  back  thereof)  for  the  use 
of  the  president  of  congress — now  in  possession  of  B.  Tucker,  Esq.] 

It  is  perfectly  clear  from  these  extracts,  1.  That  the  colonies  did  not  consider 
themselves  as  "  one  people,"  and  that  they  were  therefore  bound  to  consider  the 
quarrel  of  Boston  as  their  own;  but  that  they  made  common  cause  with  Mas- 
sachusetts, only  because  the  principles  asserted  in  regard  to  her,  equally  affected 
the  other  colonies ;  2.  That  each  colony  appointed  its  own  delegates,  giving 
them  precisely  such  power  and  authority  as  suited  its  own  views ;  3.  That  no 
colony  gave  any  power  or  authority,  except  for  advisement  only.  4.  That  so 
far  from  designing  to  establish  "  a  general  or  national  government."  and  to 
form  themselves  into  "  a  nation  de  facto"  their  great  purpose  was  to  bring  about 
a  reconciliation  and  harmony  with  the  mother  country.  This  is  still  farther 
apparent  from  the  tone  of  the  public  addresses  of  congress.  5.  That  this  con- 
gress was  not  "  organized  un-ier  the  auspices  and  with  the  consent  of  the  peo- 
ple, acting  directly  in  their  primary,  sovereign  capacity,  and  without  the  inter- 
vention of  the  functionaries  to  whom  the  ordinary  powers  of  government  were 
delegated  in  the  colonies,"  but,  on  the  contrary,  that  it  was  organized  by  the 
colonies  as  such,  and  generally  through  their  ordinary  legislatures ;  and  always 
with  careful  regard  to  their  separate  and  independent  rights  and  powers. 

If  the  congress  of  1774  was  "  a  general  or  national  government,"  neither  New 
York  nor  Georgia  was  a  party  to  it;  for  neither  of  them  was  represented  in  that 
congress.  It  is  also  worthy  of  remark  that  the  congress  of  1774  had  no  agents 
of  its  own  in  foreign  countries,  but  employed  those  of  the  several  colonies.  See 
the  resolution  for  delivering  the  address  to  the  king,  passed  October  25,  1774, 
and  the  letter  to  the  agents,  approved  on  the  following  day. 


23  TRUE  NATURE  AND  CHARACTER  OF 

tion  de  facto,"  and  that  that  body  was  not  "a  general  or  na- 
tional government,"  nor  a  government  of  any  kind  -whatever. 
The  existence  of  such  government  was  absolutely  inconsistent 
with  the  allegiance  which  the  colonies  still  acknowledged  to  the 
British  crown.  Our  author  himself  informs  us  in  a  passage  al- 
ready quoted,  that  they  had  no  power  to  form  such  government, 
nor  to  enter  into  "  any  league  or  treaty  among  themselves." 
Indeed,  congress  did  not  claim  any  legislative  power  whatever, 
nor  could  it  have  done  so,  consistently  with  the  political  rela- 
tions which  the  colonies  still  acknowledged  and  desired  to  pre- 
serve. Its  acts  were  in  the  form  of  resolutions,  and  not  in  the 
form  of  laws;  it  recommended  to  its  constituents  whatever  it 
believed  to  be  for  their  advantage,  but  it  commanded  nothing. 
Each  colony,  and  the  people  thereof,  were  at  perfect  liberty  to 
act  upon  such  recommendation  or  not,  as  they  might  think  pro- 
per.* 

*  The  journals  of  congress  afford  the  most  abundant  and  conclusive  proofs 
of  this.  In  order  to  show  the  general  character  of  their  proceedings  it  is 
enough  for  me  to  refer  to  the  following : 

On  the  llth  October,  1774,  it  was  "Resolved  unanimously,  That  a  memorial 
be  prepared  to  the  people  of  British  America,  stating  to  them  the  necessity  of 
a  firm,  united  and  invariable  observation  of  the  measures  recommended  by  the 
congress,  as  they  tender  the  invaluable  rights  and  liberties  derived  to  them 
from  the  laws  and  constitution  of  their  country."  The  memorial  was  accord- 
ingly prepared,  in  conformity  with  the  resolution. 

Congress  having  previously  had  under  consideration  the  plan  of  an  associa- 
tion for  establishing  non-importation,  &c.,  finally  adopted  it,  October  20,  1774. 
After  reciting  thuir  grievances,  they  say,  "And,  therefore,  we  do,  for  ourselves 
and  the  inhabitants  of  the  several  colonies  whom  we  represent,  firmly  agree 
and  associate,  under  the  sacred  ties  of  virtue,  honor  and  love  of  our  country,  as 
follows."  They  then  proceed  to  recommend  a  certain  course  of  proceeding, 
such  as  non-importation  and  non-consumption  of  certain  British  productions, 
they  recommended  the  appointment  of  a  committee  in  every  county,  city  and 
town,  to  watch  their  fellow- citizens,  in  order  to  ascertain  whether  or  not  "  any 
person  within  the  limits  of  their  appointment  has  violated  this  association  ;:} 
and  if  they  should  find  any  such,  it  is  their  duty  to  report  them,  "  to  the  end, 
that  all  such  foes  to  the  rights  of  British  America  may  be  publicly  known,  and 
universally  contemned  as  the  enemies  of  American  liberty  ;  and,  thenceforth,  we  re- 
spectively will  break  off  all  dealings  with  him  or  her"  They  also  resolve,  that 
they  will  "  have  no  trade,  commerce,  dealings  or  intercourse  whatsoever,  with 
any  colony  or  province  in  North  America,  which  shall  not  accede  to,  or  which 
shall  hereafter  violate,  this  association,  but  will  hold  them  as  unworthy  of  the 
rights  of  freemen,  and  as  inimical  to  the  liberties  of  their  country." 

This  looks  very  little  like  the  legislation  of  the  "  general  or  national  govern- 


OUR   FEDERAL   GOVERNMENT.  23 

On  the  22d  October,  1774,  this  congress  dissolved  *it- 
self,  having  recommended  to  the  several  colonies  to  ap- 
point delegates  to  another  congress,  to  be  held  in  Philadelphia 
in  the  following  May.  Accordingly  delegates  were  chosen,  as 
they  had  been  chosen  to  the  preceding  congress,  each  colony 
and  the  people  thereof  acting  for  themselves,  and  by  themselves; 
and  the  delegates  thus  chosen  were  clothed  with  substantially 
the  same  powers,  for  precisely  the  same  objects,  as  in  the  for- 
mer congress.  Indeed,  it  could  not  have  been  otherwise;  for 
the  relations  of  the  colonies  were  still  unchanged,  and  any  mea- 
sure establishing  "  a  general  or  national  government,"  or  unit- 
ing the  colonies  so  as  to  constitute  them  "  a  nation  de  facto," 
would  have  been  an  act  of  open  rebellion,  and  would  have 
severed  at  once  all  the  ties  which  bound  them  to  the  mother 
country,  and  which  they  were  still  anxious  to  preserve.  New 
York  was  represented  in  this  congress  precisely  as  she  had  been 
in  the  former  one,  that  is,  by  delegates  chosen  by  a  part  of  her 
people ;  for  the  royal  party  was  so  strong  in  that  colony,  that  it 
would  have  been  impossible  to  obtain  from  the  legislature  an 
expression  of  approbation  of  any  measure  of  resistance  to  Bri- 
tish authority.  The  accession  of  Georgia  to  the  general  associ- 
ation was  not  made  known  till  the  20th  of  July,  and  her  dele- 
gates did  not  take  their  seats  till  the  13th  of  September.  In 
the  mean  time  congress  had  proceeded  in  the  discharge  of  its 
duties,  and  some  of  its  *most  important  acts,  and  among  r  *.-);; -i 
the  rest  the  appointment  of  a  commander-in-chief  of  their 
armies,  were  performed  while  those  two  colonies  were  unrepre- 
sented. Its  acts,  like  those  of  the  former  congress,  were  in  the 
form  of  resolution  and  recommendation;  for  as  it  still  held  out 
the  hope  of  reconciliation  with  the  parent  country,  it  did  not 
venture  to  assume  the  function  of  authoritative  legislation.  It 
continued  to  hold  this  attitude  and  to  act  in  this  mode  till  the 
4th  of  July,  1776,  when  it  declared  that  the  colonies  there  repre- 
sented (including  New  York,  which  had  acceded  after  the  bat- 

ment"  of  "  a  nation  de  facto.''  The  most  important  measures  of  general  concern 
are  rested  upon  no  stronger  foundation  than  "  the  sacred  ties  of  virtue,  honor 
and  the  love  of  our  country,"  and  have  no  higher  sanction  than  public  contempt 
and  exclusion  from  the  ordinary  intercourse  of  society! 


25  TRUE  NATURE  AND  CHARACTER  OF 

tie  of  Lexington,)  were,  and  of  right  ought  to  be,  free  and 
independent  States.* 

*  That  the  powers  granted  to  the  delegates  to  the  second  congress  were  sub- 
stantially the  same  with  those  granted  to  the  delegates  to  the  first,  will  appear 
from  the  following  extracts  from  their  credentials. 

New  Hampshire.  "  To  consent  and  agree  to  all  measures,  which  said  con- 
gress shall  deem  necessary  to  obtain  redress  of  American  grievances."  Dele- 
gates appointed  by  a  convention. 

Massachusetts.  "  To  concert,  agree  upon,  direct  and  order"  (in  concert  with 
the  delegates  of  the  other  colonies)  ';  such  further  measures  as  to  them  shall 
appear  to  be  best  calculated  for  the  recovery  and  establishment  of  American 
rights  and  liberties,  and  for  restoring  harmony  between  Great  Britain  and  the 
colonies."  Delegates  appointed  by  provincial  congress. 

Connecticut.  "  To  join,  consult  and  advise  with  the  other  colonies  in  British 
America,  on  proper  measures  for  advancing  the  best  good  of  the  colonies." 
Delegates  appointed  by  the  colonial  house  of  representatives. 

The  colony  of  New  York  was  not  represented  in  this  congress,  but  delegates 
were  appointed  by  a  convention  of  deputies  from  the  city  and  county  of  New 
York,  the  city  and  county  of  Albany  and  the  counties  of  Dutchess,  Ulster, 
Orange,  West  Chester,  King's  and  Suffolk.  They  gave  their  delegates  power  to 
"  concert  and  determine  upon  such  measures,  as  shall  be  judged  most  effectual 
for  the  preservation  and  re-establishment  of  American  rights  and  privileges, 
and  for  the  restoration  of  harmony  between  Great  Britain  and  the  colonies." 
Queen's  county  approved  of  the  proceeding. 

Pennsylvania.  Simply  to  "  attend  the  general  congress."  Delegates  appoint- 
ed by  provincial  assembly. 

New  Jersey.  "  To  attend  the  continental  congress  and  to  report  their  pro- 
ceedings to  the  next  session'of  general  assembly."  Delegates  appointed  by  the 
colonial  assembly. 

Delaware.  "  To  concert  and  agree  upon  such  farther  measures,  as  shall 
appear  to  them  best  calculated  for  the  accommodation  of  the  unhappy  differ- 
ences between  Great  Britain  and  the  colonies  on  a  constitutional  foundation, 
which  the  house  most  ardently  wish  for,  and  that  they  report  their  proceed- 
ings to  the  next  session  of  general  assembly."  Delegates  appointed  by  the 
assembly. 

Maryland.  "  To  consent  and  agree  to  all  measures,  which  said  congress 
shall  deem  necessary  and  effectual  to  obtain  a  redress  of  American  grievances ; 
and  this  province  bind  themselves  to  execute,  to  the  utmost  of  their  power,  all 
resolutions  which  the  said  congress  may  adopt."  Delegates  appointed  by  con- 
vention, and  subsequently  approved  by  the  general  assembly. 

Virginia.  "  To  represent  this  colony  in  general  congress,  to  be  held,  &c." 
Delegates  appointed  by  convention. 

North  Carolina.  "  Such  powers  as  may  make  any  acts  done  by  them,  or  any 
of  them,  or  consent  given  in  behalf  of  this  province,  obligatory  in  honor  upon 
every  inhabitant  thereof."  Delegates  appointed  by  convention,  and  approved 
in  general  assembly. 

South  Carolina.  "To  concert,  agree  to  and  effectually  prosecute  such  mea- 
sures, as  in  the  opinion  of  the  said  deputies,  and  the  deputies  to  be  assembled, 


OUR    FEDERAL   GOVERNMENT.  25 

It  is  to  be  remarked,  that  no  new  powers  were  *con-  r*nn  -> 
ferred  on  congress  after  the  declaration  of  independence. 
Strictly  speaking,  they  had  no  authority  to  make  that  declara- 
tion. They  were  not  appointed  for  any  such  purpose,  but  pre- 
cisely the  reverse ;  and  although  some  of  them  were  expressly 
authorized  to  agree  to  it,  yet  others  were  not.  Indeed,  we  are 
informed  by  Mr.  Jeiferson,  that  the  declaration  was  opposed  by 
some  of  the  firmest  patriots  of  the  body,  and  among  the  rest, 
by  R.  R.  Livingston,  Dickenson,  Wilson  and  E.  Rutledge,  on 
the  ground  that  it  was  premature ;  that  the  people  of  New  York, 
New  Jersey,  Maryland  and  Delaware  were  not  yet  ripe  for  it7 
but  would  *soon  unite  with  the  rest,  if  not  indiscreetly  [-*9-T-i 
urged.  In  venturing  upon  so  bold  a  step,  congress  acted 
precisely  as  they  did  in  all  other  cases,  in  the  name  of  the  States 
whose  representatives  they  were,  and  with  a  full  reliance  that 
those  States  would  confirm  whatever  they  might  do  for  the  gene- 
ral good.  They  were,  strictly,  agents  or  ministers  of  indepen- 
dent States,  acting  each  under  the  authority  and  instructions  of 

shall  be  most  likely  to  obtain  a  redress  of  American  greivances."  Delegates 
appointed  by  provincial  congress. 

In  the  copy  of  the  Journals  of  Congress  now  before  me  I  do  not  find  the  cre- 
dentials of  the  delegates  from  Rhode  Island.  They  did  not  attend  at  the  first 
meeting  of  congress,  although  they  did  at  a  subsequent  period.  Georgia  was 
not  represented  in  this  congress  until  September,  1775.  On  the  13th  May, 
1775,  Lyman  Hall  appeared  as  a  delegate  from  the  parish  of  St., Johns,  and  he 
•was  admitted  to  his  seat,  "  subject  to  such  regulations,  as  the  congress  shall 
determine,  relative  to  his  voting."  He  was  never  regarded  as  the  representa- 
tive of  Georgia,  nor  was  that  colony  then  considered  as  a  party  to  the  proceed- 
ings of  congress.  This  is  evident  from  the  fact  that,  in  the  address  to  the 
inhabitants  of  Great  Britain,  they  use  the  style,  "  The  twelve  United  Colonies, 
by  their  delegates  in  congress,  to  the  inhabitants  of  Great  Britain,"  adopted 
on  the  8th  July,  1775.  On  the  20th  of  that  month  congress  were  notified  that 
a  convention  of  Georgia  had  appointed  delegates  to  attend  them,  but  none  of 
them  took  their  seats  till  the  13th  September  following.  They  were  authorized 
"  to  do,  transact,  join  and  concur  with  the  several  delegates  from  the  other 
colonies  and  provinces  upon  this  continent,  on  all  such  matters  and  things  as 
shall  appear  eligible  and  fit,  at  this  alarming  time,  for  the  preservation  and 
defence  of  our  rights  and  liberties,  and  for  the  restoration  of  harmony,  upon 
constitutional  principles,  between  Great  Britain  and  America." 

Some  of  the  colonies  appointed  their  delegates  only  for  limited  times,  at  the 
expiration  of  which  they  were  replaced  by  others,  but  without  any  material 
change  in  their  powers.  The  delegates  were,  in  all  things,  subject  to  the  orders 
of  their  respective  i-olonies. 


27  TRUE  NATURE  AND  CHARACTER  OF 

his  own  State,  and  having  no  power  whatever,  except  what  those 
instructions  conferred.  The  States  themselves  were  not  bound 
by  the  resolves  of  congress,  except  so  far  as  they  respectively 
authorized  their  own  delegates  to  bind  them.  There  was  no 
original  grant  of  powers  to  that  body,  except  for  deliberation 
and  advisement ;  there  was  no  constitution,  no  law,  no  agree- 
ment, to  which  they  could  refer,  in  order  to  ascertain  the  extent 
of  their  powers.  The  members  did  not  all  act  under  the  same 
instructions,  nor  with  the  same  extent  of  authority.  The  dif- 
ferent States  gave  different  instructions,  each  according  to  its 
own  views  of  right  and  policy,  and  without  reference  to  any 
general  scheme  to  which  they  were  all  bound  to  conform.  Con- 
gress had  in  fact  no  power  of  government  at  all,  nor  had  it  that 
character  of  permanency  which  is  implied  in  the  idea  of  govern- 
ment. It  could  not  pass  an  obligatory  law,  nor  devise  an  obli- 
gatory sanction,  by  virtue  of  any  inherent  power  in  itself.  It 
was,  as  already  remarked,  precisely  the  same  body  after  the 
declaration  of  independence  as  before.  As  it  was  not  then  a 
government,  and  could  not  establish  any  new  and  valid  relations 
between  the  colonies,  so  long  as  they  acknowleged  themselves 
dependencies  of  the  British  crown,  they  certainly  could  not  do 
so  after  the  declaration  of  independence,  without  some  new 
grant  of  power.  The  dependent  colonies  had  then  become  inde- 
pendent States;  their  political  condition  and  relations  were 
necessarily  changed  by  that  circumstance ;  the  deliberative  and 
advisory  body,  through  whom  they  had  consulted  together  as 
colonies,  was  functus  officio ;  the  authority  which  appointed 
them  had  ceased  to  exist,  or  was  superseded  by  a  higher  autho- 
rity. Every  thing  which  they  did,  after  this  period  and  before 
the  articles  of  confederation,  was  without  any  other  right  or 
authority  than  what  was  derived  from  the  mere  consent  and 
acquiescence  of  the  several  States.  In  the  ordinary  business 
of  that  government  de  facto,  which  the  occasion  had  called  into 
existence,  they  did  whatever  the  public  interest  seemed  to  re- 
quire, upon  the  secure  reliance  that  their  acts  would  be  approved 
and  confirmed.  In  other  cases,  however,  they  called  for  speci- 
fic grants  of  power ;  and  in  such  cases,  each  representative 
applied  to  his  own  State  alone,  and  not  to  any  other  State  or 


OUR  FEDERAL   GOVERNMENT.  £7 

people.  Indeed,  as  they  *were  called  into  existence  by  r  %9Q  -, 
the  colonies  in  1775,  and  as  they  continued  in  existence, 
without  any  new  election  or  new  grant  of  power,  it  is  difficult 
to  perceive  how  they  could  form  "  a  general  or  national  govern- 
ment organised  by  the  people."  They  were  elected  by  subjects 
of  the  king  of  England ;  subjects  who  had  ro  right,  as  they 
themselves  admitted,  to  establish  any  government  whatever; 
and  when  those  subjects  became  citizens  of  independent  states, 
they  gave  no  instructions  to  establish  any  such  government. 
The  government  exercised  was,  as  already  remarked,  merely  a 
government  de  facto,  and  no  farther  de  jure  than  the  subse- 
quent approval  of  its  acts  by  the  several  States  made  it  so. 

This  brief  review  will  enable  us  to  determine  how  far  the 
author  is  supported  in  the  inferences  he  has  drawn,  in  the  pas- 
sages last  quoted.  We  have  reason  to  regret  that  in  these,  as 
in  many  others,  he  has  not  been  sufficiently  specific,  either  in 
stating  his  proposition  or  in  citing  his  proof.  To  what  people 
does  he  allude,  when  he  tells  us  that  the  "  first  general  or 
national  government"  was  organized  "by  the  people?"  The 
first  and  every  recommendation  to  send  deputies  to  a  general 
congress  was  addressed  to  the  colonies  as  such ;  in  the  choice 
of  those  deputies  each  colony  acted  for  itself,  without  mingling 
in  any  way  with  the  people  or  government  of  any  other  col- 
ony ;  and  when  the  deputies  met  in  congress,  they  voted  on  all 
questions  of  public  and  general  concern  by  colonies,  each  col- 
ony having  one  vote*  whatever  was  its  population  or  number  of 
deputies.  If,  then,  this  government  was  organized  by  "the 
people  "  at  all,  it  was  clearly  the  people  of  the  several  colonies, 
and  not  the  joint  people  of  all  the  colonies.  And  where  is  the 
author's  warrant  for  the  assertion,  that  they  acted  "  directly 
in  their  primary  sovereign  capacity,  and  without  the  interven- 
tion of  the  functionaries,  to  whom  the  ordinary  powers  of 
government  were  delegated  in  the  colonies?"  He  is  in  most 
respects  a  close  follower  of  Marshall,  and  he  could  scarcely 
have  failed  to  see  the  following  passage,  which  is  found  in  a 
note  in  the  168th  page  of  the  second  volume  of  the  Life  of 
Washington.  Speaking  of  the  congress  of  1774,  Marshall 
says :  "  The  members  of  this  congress  were  generally  elected 
by  the  authority  of  the  colonial  legislatures,  but  in  some  instan- 
3 


28  TRUE  NATURE  AND  CHARACTER  OF 

ces  a  different  system  had  been  pursued.  In  New  Jersey  and 
Maryland  the  elections  were  made  by  committees  chosen  in  the 
several  counties  for  that  particular  purpose ;  and  in  New  York, 
where  the  royal  party  was  very  strong,  and  where  it  is  proba- 
ble that  no  legislative  act,  authorizing  an  election  of  members 
to  represent  that  colony  in  congress,  could  have  been  obtained, 
the  people  themselves  *assembled  in  those  places,  where 

[#OQ  ~| 
-I  the  spirit  of  opposition  to  the  claims  of  parliament  pre- 
vailed, and  elected  deputies,  who  were  very  readily  received 
into  congress."  Here  the  general  rule  is  stated  to  be,  that  the 
deputies  were  elected  by  the  "  colonial  legislatures,"  and  the 
instances  in  which  the  people  acted  "  directly  in  their  primary, 
sovereign  capacity,  without  the  intervention  of  the  ordinary 
functionaries  of  government,"  are  given  as  exceptions.  And 
even  in  those  cases,  in  which  delegates  were  appointed  by 
conventions  of  the  people,  it  was  deemed  necessary  in  many 
instances,  as  we  have  already  seen,  that  the  appointment 
should  be  approved  and  confirmed  by  the  ordinary  legislature. 
As  to  New  York,  neither  her  people  nor  her  government  had  so 
far  lost  their  attachment  to  the  mother  country  as  to  concur  in 
any  measure  of  opposition  until  after  the  battle  of  Lexington, 
in  April,  1775 ;  and  the  only  representatives  which  New  York 
had  in  the  congress  of  1774  were  those  of  a  comparatively 
small  portion  of  her  people.  It  is  well  known — and,  indeed, 
the  author  himself  so  informs  us — that  the  members  of  the 
congress  of  1775  were  elected  substantially  as  were  those  of 
the  preceding  congress ;  so  that  there  were  very  few  of  the 
colonies,  in  which  the  people  performed  that  act  in  their  "pri- 
mary, sovereign  capacity,"  without  the  intervention  of  their 
constituted  authorities.  It  is  of  little  consequence,  however,  to 
the  present  enquiry,  whether  the  deputies  were  chosen  by  the 
colonial  legislatures,  as  was  done  in  most  of  the  colonies,  or  by 
conventions,  as  was  done  in  Georgia  and  some  others,  or  by 
committees  appointed  for  the  purpose,  as  was  done  in  one  or 
two  instances,  or  by  the  people  in  primary  assemblies,  as  was 
done  in  part  of  New  York.  All  these  modes  were  resorted  to, 
according  as  the  one  or  the  other  appeared  most  convenient  or 
proper  in  each  particular  case.  But,  whichever  mode  was 
adopted,  the  members  were  chosen  by  each  colony  in  and  for 


OUK  FEDERAL   GOVERNMENT.  29 

itself,  and  were  the  representatives  of  that  colony  alone,  and 
not  of  any  other  colony,  or  any  nation  de  facto  or  de  jure. 
The  assertion,  therefore,  that  "the  congress  thus  assembled 
exercised  de  facto  and  de  jure  a  sovereign  authority,  not  as  the 
delegated  agents  of  the  governments  de  facto  of  the  colonies, 
but  in  virtue  of  original  powers  derived  from  the  people,"  is, 
to  say  the  least  of  it,  very  bold,  in  one  who  had  undoubtedly 
explored  all  the  sources  of  information  upon  the  subject.  Until 
the  adoption  of  the  articles  of  confederation  congress  had  no 
"  original  powers,"  except  only  for  deliberation  and  advisement, 
and  claimed  no  "  sovereign  authority  "  whatever.  It  was  an  occa- 
sional, and  not  a  permanent  body,  or  one  renewable  from  time 
to  time.  Although  they  did,  in  many  instances,  "  exercise 
de  facto  "  a  *power  of  legislation  to  a  certain  extent,  yet 
they  never  held  that  power  " de  jure"  by  any  grant  •- 
from  the  colonies  or  the  people ;  and  their  acts  became  valid 
only  by  subsequent  confirmation  of  them,  and  not  because  they 
had  any  delegated  authority  to  perform  them.  The  whole  his- 
tory of  the  period  proves  this,  and  not  a  single  instance  can  be 
cited  to  the  contrary.  The  course  of  the  revolutionary  govern- 
ment throughout  attests  the  fact,  that,  however  the  people  may 
have  occasionally  acted,  in  pressing  emergencies,  without  the 
intervention  of  the  authorities  of  their  respective  colonial  gov- 
ernments, they  never  lost  sight  of  the  fact  that  they  were  citi- 
zens of  separate  colonies,  and  never,  even  impliedly,  surrendered 
that  character,  or  acknowledged  a  different  allegiance.  In  all 
the  acts  of  congress,  reference  was  had  to  the  colonies,  and 
never  to  the  people.  That  body  had  no  power  to  act  directly 
upon  the  people,  and  could  not  execute  its  own  resolves  as  to 
most  purposes,  except  by  the  aid  and  intervention  of  the  colo- 
nial authorities.  Its  measures  were  adopted  by  the  votes  of 
the  colonies  as  such,  and  not  by  the  rule  of  mere  numerical 
majority,  which  prevails  in  every  legislative  assembly  of  an 
entire  nation.  This  fact  alone  is  decisive  to  prove,  that  the 
members  were  not  the  representatives  of  the  people  of  all  the 
colonies,  for  the  judgment  of  each  colony  was  pronounced  by 
its  own  members  only,  and  no  others  had  any  right  to  mingle 
in  their  deliberations.  What,  then,  was  this  "  sovereign  autho- 
rity ?"  What  was  the  nature,  what  the  extent,  of  its  "origi- 


gO  TRUE  NATURE  AND  CHARACTER  OF 

nal  powers  ?"  From  -what  "  people  "  were  those  powers  derived  ? 
I  look  in  vain  for  answers  to  these  questions  to  any  historical 
record  which  has  yet  met  my  view,  and  have  only  to  regret  that 
the  author  has  not  directed  me  to  better  guides. 

The  author's  conclusion  is  not  better  sustained  by  the  nature 
and  extent  of  the  powers  exercised  by  the  revolutionary  govern- 
ment. It  has  already  been  stated,  that  no  original  powers  of 
legislation  were  granted  to  the  congresses  of  1774  and  1775 ; 
and  it  is  only  from  their  acts  that  we  can  determine  what 
powers  they  actually  exercised.  The  circumstances  under 
which  they  were  called  into  existence  precluded  the  possibility 
of  any  precise  limitations  of  their  powers,  even  if  it  had  been 
designed  to  clothe  them  with  the  functions  of  government.  The 
colonies  were  suffering  under  common  oppressions,  and  were 
threatened  with  common  dangers,  from  the  mother  country. 
The  great  object  which  they  had  in  view  was  to  produce  that 
concert  of  action  among  themselves  which  would  best  enable 
them  to  resist  their  common  enemy,  and  best  secure  the  safety 
and  liberties  of  all.  Great  confidence  must  necessarily  be 
reposed  in  public  rulers  *under  circumstances  of  this  sort. 
'  We  may  well  suppose,  therefore,  that  the  revolutionary 
government  exercised  every  power  which  appeared  to  be  neces- 
sary for  the  successful  prosecution  of  the  great  contest  in  which 
they  were  engaged ;  and  we  may,  with  equal  propriety,  suppose 
that  neither  the  people  nor  the  colonial  governments  felt  any 
disposition  to  scrutinize  very  narrowly  any  measure  which 
promised  protection  and  safety  to  themselves.  They  knew  that 
the  government  was  temporary  only ;  that  it  was  permitted  only 
for  a  particular  and  temporary  object,  and  that  they  could  at 
any  time  recall  any  and  every  power  which  it  had  assumed.  It 
would  be  a  violent  and  forced  inference,  from  the  powers  of  such 
an  agency,  (for  it  was  not  a  government,  although  I  have  some- 
times, for  convenience,  called  it  so,)  however  great  they  might 
be.  to  say  that  the  people,  or  States,  which  established  it,  meant 
thereby  to  merge  their  distinctive  character,  to  surrender  all 
the  rights  and  privileges  which  belonged  to  them  as  separate 
communities,  and  to  consolidate  themselves  into  one  nation. 

In  point  of  fact,  however,  there  was  nothing  in  the  powers 
exercised  by  the  revolutionary  government,  so  far  as  they  can 


OUR  FEDERAL   GOVERNMENT.  31 

be  known  from  their  acts,  inconsistent  with  the  perfect  sover- 
eignty and  independence  of  the  States.  These  were  always  ad- 
mitted in  terms,  and  were  never  denied  in  practice.  So  far  as 
external  relations  were  concerned,  congress  seems  to  have  exer- 
cised every  power  of  a  supreme  government.  They  assumed 
the  right  to  "  declare  war  and  to  make  peace ;  to  authorize 
captures ;  to  institute  appellate  prize  courts  ;  to  direct  and 
control  all  national, military  and  naval  operations;  to  form  alli- 
ances and  make  treaties;  to  contract  debts  and  issue  bills  of 
credit  on  national  account."  These  powerswere  not  "exclusive," 
however,  as  our  author  supposes.  On  the  contrary,  troops  were 
raised,  vessels  of  war  were  commissioned,  and  various  military 
operations  were  conducted  by  the  colonies,  on  their  own  separate 
means  and  authority.  T^conderoga  was  taken  by  the  troops  of 
Connecticut  before  the  declaration  of  independence ;  Massa- 
chusetts and  Connecticut  fitted  out  armed  vessels  to  cruise 
against  those  of  England,  in  October,  1775  ;  South  Carolina 
soon  followed  their  example.  In  1776,  New  Hampshire  author- 
ized her  executive  to  issue  letters  of  marque  and  reprisal. 

These  instances  are  selected  out  of  many,  as  sufficient  to  show 
that  in  the  conduct  of  war  congress  possessed  no  "exclusive" 
power,  and  that  the  colonies  (or  States)  retained,  and  actually 
asserted,  their  own  sovereign  right  and  power  as  to  that  matter. 
And  r  ot  as  to  that  matter  alone,  for  New  Hampshire  established 
post  offices.  The  words  of  our  author  may,  indeed,  import  that 
the  power  of  congress  over  the  *subject  of  war  was 
"exclusive"  only  as  to  such  military  and  naval  opera-  L 
tions  as  he  considers  national,  that  is,  such  as  were  undertaken 
by  the  joint  power  of  all  the  colonies ;  and,  if  so,  he  is  correct. 
But  the  comma  after  the  word  "  national  "  suggests  a  different 
interpretation.  At  all  events,  the  facts  which  I  have  mentioned 
prove  that  congress  exercised  no  power  which  was  considered 
as  abridging  the  absolute  sovereignty  and  independence  of  the 
States. 

Many  of  those  powers  which,  for  greater  convenience,  were 
entrusted  exclusively  to  congress,  could  not  be  effectually  ex- 
erted except  by  the  aid  of  the  State  authorities.  The  troops 
required  by  congress  were  raised  by  the  States,  and  the  com- 
missions of  their  officers  were  countersigned  by  the  governors  of 


32          TRUE  NATURE  AND  CHARACTER  OF 

the  States.  Congress  were  allowed  to  issue  bills  of  credit,  but 
they  could  not  make  them  a  legal  tender,  nor  punish  the  counter- 
feiter of  them.  Neither  could  they  bind  the  States  to  redeem 
them,  nor  raise  by  their  own  authority  the  necessary  funds  for 
that  purpose.  Congress  received  ambassadors  and  other  public 
ministers,  yet  they  had  no  power  to  extend  to  them  that  pro- 
tection which  they  receive  from  the  government  of  every  sove- 
rei<m  nation.  A  man  by  the  name  of  De  Longchamps  entered 
the  house  of  the  French  minister  plenipotentiary  in  Philadelphia, 
and  there  threatened  violence  to  the  person  of  Francis  Barbe 
Marbois,  secretary  of  the  French  legation,  consul  general  of 
France,  and  consul  for  the  state  of  Pennsylvania ;  he  after- 
wards assaulted  and  beat  him  in  the  public  street.  For  this 
offence,  he  was  indicted  and  tried  in  the  court  of  Oyer  and  Ter- 
miner  of  Philadelphia,  and  punished  under  its  sentence.  The 
case  turned  chiefly  upon  the  law  of  nations,  with  reference  to  the 
protection  which  it  secures  to  foreign  ministers.  A  question 
was  made,  whether  the  authorities  of  Pennsylvania  should  not 
deliver  up  De  Longchamps  to  the  French  government  to  be 
dealt  with  at  their  pleasure.  It  does  not  appear  that  the  federal 
government  was  considered  to  possess  any  power  over  the  sub- 
ject, or  that  it  was  deemed  proper  to  invoke  its  counsel  or 
authority  in  any  form.  This  case  occurred  in  1784,  after  the 
adoption  of  the  articles  of  confederation ;  but  if  the  powers  of 
the  federal  government  were  less  under  those  articles  than 
before,  it  only  proves  that,  however  great  its  previous  powers 
may  have  been,  they  were  held  at  the  will  of  the  States,  and 
were  actually  recalled  by  the  articles  of  confederation.  Thus 
it  appears  that,  in  the  important  functions  of  raising  an  army, 
of  providing  a  public  revenue,  of  paying  public  debts,  and  giving 
security  to  the  persons  of  foreign  ministers,  the  boasted  "  sove- 
reignty "  of  the  federal  government  was  merely  nominal,  and 
owed  its  entire  *efficiency  to  the  co-operation  and  aid 
of  the  State  governments.  Congress  had  no  power  to 
coerce  those  governments;  nor  could  it  exercise  any  direct 
authority  over  their  individual  citizens. 

Although  the  powers  actually  assumed  and  exercised  by  con- 
gress were  certainly  very  great,  they  were  not  always  acquiesced 
in,  or  allowed,  by  the  States.  Thus,  the  power  to  lay  an  em- 


OUR  FEDERAL  GOVERNMENT.  33 

bargo  was  earnestly  desired  by  them,  but  was  denied  by  the 
States.  And  in  order  the  more  clearly  to  indicate  that  many 
of  their  powers  were  exercised  merely  by  sufferance,  and  at  the 
same  time  time  to  lend  a  sanction  to  their  authority  so  far  as 
they  chose  to  allow  it,  it  was  deemed  necessary,  by  at  least  one 
of  the  States,  to  pass  laws  indemnifying  those  who  might  act  in 
obedience  to  the  resolutions  of  that  body.* 

A  conclusive  proof,  however,  of  the  true  relation  which  the 
colonies  held  to  the  revolutionary  government,  even  in  the 
opinion  of  congress  itself,  is  furnished  by  their  own  journals. 
In  June,  1776,  that  body  recommended  the  passing  of  laws  for 
the  punishment  of  treason ;  and  they  declare  that  the  crime 
shall  be  considered  as  committed  against  the  colonies  indivi- 
dually, and  not  against  them  all,  as  united  or  confederated  to- 
gether. This  could  scarcely  have  been  so,  if  they  had  consid- 
ered themselves  "a  government  de  facto  and  de  jure,"  clothed 
with  "sovereign  authority."  The  author,  however,  is  not  satis- 
fied to  rest  his  opinion  upon  historical  facts ;  he  seeks  also  to 
fortify  himself  by  a  judicial  decision.  He  informs  us  that, 
"soon  after  the  organization  of  the  present  government,  the 
question  [of  the  powers  of  the  continental  congress]  was  most 
elaborately  discussed  before  the  supreme  court  of  the  United 
States,  in  a  case  calling  for  an  exposition  of  the  appellate  juris- 
diction of  congress  in  prize  causes,  before  the  ratification  of  the 
confederation.  The  result  of  that  examination  was,  that  con- 
gress before  the  confederation  possessed,  by  the  consent  of  the 
people  of  the  United  States,  sovereign  and  supreme  powers  for 
national  purposes ;  and,  among  others,  the  supreme  powers  of 
peace  and  war,  and,  as  an  incident,  the  right  of  entertaining 
appeals  in  the  last  resort,  in  prize  causes,  even  in  opposition  to 
State  legislation.  And  that  the  actual  powers  exercised  by 
congress,  in  respect  to  national  objects,  furnished  the  best  expo- 
sition of  £its  constitutional  authority,  since  they  emanated  from 
the  people,  and  were  acquiesced  in  by  the  people" 

There  is  in  this  passage  great  want  of  accuracy,  and  per- 
haps some  want  of  candor.     The  author,  as  usual,  neglects  to 
cite  the  judicial  *decision  to  which  he  alludes,  but  it  must 
be  the  case  of  Penhallow  and  others  against  Doane's  *- 
*  This  was  done  by  Pennsylvania. — See  2  Dallas,  Col.L.  of  Penn.  3. 


g4  TRUE  NATURE  AND  CHARACTER  OF 

administrators.  (3  Dallas'  Reports,  54.)  Congress,  in  Novem- 
ber, 1775,  passed  a  resolution,  recommending  to  the  several 
colonies  to  establish  prize  courts,  with  a  right  of  appeal  from 
their  decisions  to  congress.  In  1776,  New  Hampshire  accord- 
ingly passed  a  law  upon  the  subject,  by  which  ai  appeal  to 
congress  was  allowed  in  cases  of  capture  by  vessels  in  the  ser- 
vice of  the  united  colonies ;  but  where  the  capture  was  made  by 
"  a  vessel  in  the  service  of  the  united  colonies  and  of  any  par- 
ticular colony  or  person  together,"  the  appeal  was  allowed  to  the 
superior  court  of  New  Hampshire.  The  brigantine  Susanna 
was  captured  by  a  vessel  owned  and  commanded  by  citizens  of 
New  Hampshire,  and  was  duly  condemned  as  prize  by  her  own 
court  of  admiralty.  An  ?ppeal  was  prayed  to  congress  and 
denied ;  and  thereupon  an  appeal  to  the  superior  court  of 
New  Hampshire  was  prayed  and  allowed.  From  the  decision 
of  this  court  ari  appea'  was  taken  to  congress,  in  the  mode  pre- 
scribed by  their  resolution,  and  the  case  was  disposed  of  by  the 
court  of  appeals,  appointed  by  congress  to  take  cognizance  of 
such  cases.  After  the  adoption  of  the  present  constitution  and 
the  organization  of  the  judiciary  system  urder  it,  a  libel  was 
filed  in  the  district  court  of  New  Hampshire,  to  carry  into  effect 
the  sentence  of  the  court  of  appeals  above-mentioned.  The 
cause  being  legally  transferred  to  the  circuit  court,  was  decided 
there,  and  an  appeal  allowed  to  the  supreme  court.  That  court, 
in  its  decision,  sustains  the  jurisdiction  of  the  court  oc  appeals 
established  by  congress.  Mr.  Justice  Patterson's  opinion  is 
founded  mainly  upon  these  grounds :  That  the  powers  actually 
exercised  by  congress  ought  to  be  considered  as  legitimate,  be- 
cause they  were  such  as  the  occasion  absolutely  required,  and  were 
approved  and  acquiesced  in  by  "the  people;"  that  the  authority 
ultimately  and  finally  to  decide  on  all  matters  and  questions 
touching  the  law  of  nations  does  reside  and  is  vested  in  the  sove- 
reign supreme  power  of  war  and  peace ;  that  this  power  was 
lodged  in  the  continental  congress  by  the  consent  and  acquies- 
cence of  "  the  people;"  that  the  legality  of  all  captures  on  the 
high  seas  must  be  determined  by  the  law  of  nations ;  that  New 
Hampshire  had  committed  herself  upon  this  subject  by  voting  in 
favor  of  the  exercise  of  the  same  power  by  congress  in  the  case 
of  the  brig  Active ;  that  as  the  commission,  under  which  the 


OUR  FEDERAL  GOVERNMENT.  34 

capture  in  the  case  under  consideration  was  made,  was  issued 
by  congress,  it  resulted,  of  necessity,  that  the  validity  of  all 
captures  made  by  virtue  of  that  commission  should  be  judged  of 
by  congress,  or  its  constituted  authority,  because  "every  one 
must  be  amenaVe  to  the  *authority  under  which  he 
acts."  It  is  evident  that  this  op;nion,  while  it  sustains  »• 
the  authority  of  congress  in  the  particular  case,  does  not  prove 
its  general  supremacy,  nor  that  the  States  had  surrendered  to 
it  any  part  of  their  sovereignty  and  independence.  On  the 
contrary,  it  affirms  that  the  "  sovereign  and  supreme  power  of 
war  and  peace  "  was  assumed  by  congress,  and  that  the  exer- 
cise of  it  became  legitimate,  only  because  it  was  approved  and 
acquiesced  in ;  and  that  being  thus  legitimated,  the  appellate 
jurisdiction  in  prize  cases  followed  as  a  recessary  incident.  All 
the  powers,  which  Patterson  contends  for  as  exercised  by  con- 
gress, may  well  be  conceded,  without  in  the  slightest  degre^f 
affecting  the  question  before  us ;  they  were  as  consistent  with 
the  character  of  a  federative,  as  with  that  of  a  consolidated 
government.  He  does  not  tell  us  to  what  people  he  alludes, 
when  he  says  that  the  powers  exercised  by  congress  were  ap- 
proved and  ratified  by  "  the  people."  He  does  not,  in  any  part 
of  his  opinion,  authorize  the  idea  of  the  author,  that  "  congress 
possessed,  before  the  confederation,  by  the  consent  of  the  people 
of  the  United  States,  sovereign  and  supreme  powers  for  national 
purposes."  On  the  contrary,  as  to  one  of  those  powers,  he 
holds  the  opposite  language  ;  and  therefore  it  is  fair  to  presume, 
that  he  intended  to  be  so  understood  in  regard  to  all  the  rest. 
This  is  his  language  :  "  The  authority  exercised  by  congress, 
in  granting  commissions  to  privateers,  was  approved  and  ratified 
by  the  several  colonies  or  states,  because  they  received  and  filled 
up  the  commissions  and  bonds,  and  returned  the  latter  to  con- 
gress." This  approval  and  ratification  alone  rendered,  in  his 
opinion,  the  exercise  of  this,  and  other  similar  powers  assumed 
by  congress,  legitimate. 

Judge  Iredell,  in  delivering  his  opinion,  goes  much  more  fully 
into  the  examination  of  the  powers  of  the  revolutionary  govern- 
ment. He  thinks  that,  as  the  power  of  peace  and  war  was 
entrusted  to  congress,  they  held,  as  a  necessary  incident,  the 
power  to  establish  prize  courts ;  and  that  whatever  powers  they 


35  TRUE  NATURE  AND  CHARACTER  OF 

did  in  fact  exercise,  were  acquiesced  in  and  consented  to,  and, 
consequently,  legitimated  and  confirmed.  But  he  leaves  no 
room  to  doubt  as  to  the  source  whence  this  confirmation  was 
derived.  After  proving  that  the  several  colonies  were,  to  all 
intents  and  purposes,  separate  and  distinct,  and  that  they  did 
not  form  "one  people"  in  any  sense  of  the  term,  he  says,  "if 
congress,  previous  to  the  articles  of  confederation,  possessed  any 
authority,  it  was  an  authority,  as  I  have  shown,  derived  from 
the  people  of  each  province,  in  the  first  instance."  "The  au- 
thority was  not  possessed  by  congress,  unless  given  by  all  the 
States."  "I  conclude,  therefore,  that  every  particle  of  au- 
thority, which  originally  resided  either  in  *congress  or 
-"  in  any  branch  of  the  State  governments,  was  derived  from 
the  people  who  were  permanent  inhabitants  of  each  province,  in 
the  first  instance,  and  afterwards  became  citizens  of  each  State  ; 
that  this  authority  was  conveyed  by  each  body  politic  separately, 
and  not  by  all  the  people  in  the  several  provinces  or  states 
jointly."  No  language  could  be  stronger  than  this,  to  disaffirm 
the  author's  conclusion,  that  the  powers  exercised  by  congress 
were  exercised  "  by  the  consent  of  the  people  of  the  United 
States."  Certainly,  Iredell  did  not  think  so. 

The  other  two  judges,  Blair  and  Gushing,  affirm  the  general 
propositions  upon  which  Paterson  and  Iredell  sustained  the 
power  of  congress  in  the  particular  case,  but  lend  no  support  to 
the  idea  of  any  such  unity  among  the  people  of  the  several 
colonies  or  states,  as  our  author  supposes  to  have  existed. 
Gushing,  without  formally  discussing  the  question,  expressly 
says  that  "he  has  no  doubt  of  the  sovereignty  of  the  States." 

This  decision,  -then,  merely  affirms,  what  no  one  has  ever 
thought  of  denying,  that  the  revolutionary  government  exercised 
every  power  which  the  occasion  required ;  that,  among  these, 
the  powers  of  peace  and  war  were  most  important,  because  con- 
gress, alone,  represented  all  the  colonies,  and  could,  alone,  ex- 
press the  general  will,  and  wield  the  general  strength ;  that 
wherever  the  powers  of  peace  and  war  are  lodged,  belongs  also 
the  right  to  decide  all  questions  touching  the  laws  of  nations ; 
that  prize  causes  are  of  this  character ;  and,  finally,  that  all 
these  powers  were  not  derived  from  any  original  grant,  but  are 
to  be  considered  as  belonging  to  congress,  merely  because  con- 


OUK  FEDERAL    GOVERNMENT.  36 

gress  exercised  them,  and  because  they  were  sustained  in  so 
doing  by  the  approbation  of  the  several  colonies  or  states,  whose 
representatives  they  were.  Surely,  then,  our  author  was  neither 
very  accurate  nor  very  candid,  in  so  stating  this  decision  as  to 
give  rise  to  the  idea  that,  in  the  opinion  of  the  supreme  court, 
congress  possessed  original  sovereign  powers,  by  the  consent  of 
"the  people  of  the  United  States."  Even,  however,  if  the 
court  had  so  decided,  in  express  terms,  it  would  have  been  of  no 
value  in  the  present  enquiry,  as  will  by-and-by  be  shown. 

The  examination  of  this  part  of  the  subject  has  probably  been 
already  drawn  out  to  too  great  an  extent ;  but  it  would  not  be 
complete  without  some  notice  of  another  ground,  upon  which 
our  author  rests  his  favorite  idea — that  the  people  of  the  colo- 
nies formed  "one  people,"  or  nation.  Even  if  this  unity  was 
not  produced  by  the  appointment  of  the  revolutionary  govern- 
ment, or  by  the  nature  of  the  powers  exercised  by  them,  and 
acquiesced  in  by  the  people,  he  thinks  there  can  *be  no 
doubt  that  this  was  the  necessary  result  of  the  declara-  L 
tion  of  independence.  In  order  that  he  may  be  fully  under- 
stood upon  this  point,  I  will  transcribe  the  entire  passage 
relating  to  it. 

"In  the  next  place,  the  colonies  did  not  severally  act  for 
themselves,  and  proclaim  their  own  independence.  It  is  true 
that  some  of  the  States  had  previously  formed  incipient  govern- 
ments for  themselves ;  but  it  was  done  in  compliance  with  the 
recommendations  of  congress.  Virginia,  on  the  29th  of  June, 
1776,  by  a  convention  of  delegates,  declared  'the  government 
of  this  country,  as  formerly  exercised  under  the  crown  of  Great 
Britain,  totally  dissolved,'  and  proceeded  to  form  a  new  con- 
stitution of  government.  New  Hampshire  also  formed  a  new 
government,  in  December,  1775,  which  was  manifestly  intended 
to  be  temporary,  'during  (as  they  said)  the  unhappy  and  un- 
natural contest  with  Great  Britain.'  New  Jersey,  too,  esta- 
blished a  frame  of  government,  on  the  2d  July,  1776 ;  but  it 
was  expressly  declared  that  it  should  be  void  upon  a  reconcilia- 
tion with  Great  Britain.  And  South  Carolina,  in  March,  1776, 
adopted  a  constitution  of  government:  but  this  was  in  like 
manner  'established  until  an  accommodation  between  Great 
Britain  and  America  could  be  obtained.'  But  the  declaration 


37  TRUE  NATURE  AND  CHARACTER  OF 

of  the  independence  of  all  the  colonies  was  the  united  act  of  all. 
It  was  '  a  declaration  by  the  representatives  of  the  United  States 
of  America,  in  congress  assembled;'  'by  the  delegates  appointed 
by  the  good  people  of  the  colonies,'  as,  in  a  prior  declaration  of 
rights,  they  were  called.  It  was  not  an  act  done  by  the  State 
governments  then  organized,  nor  by  persons  chosen  by  them. 
It  was  emphatically  the  act  of  the  whole  people  of  the  united 
colonies,  by  the  instrumentality  of  their  representatives,  chosen 
for  that,  among  other  purposes.  It  was  an  act  not  competent 
to  the  State  governments,  or  any  of  them,  as  organized  under 
their  charters,  to  adopt.  Those  charters  neither  contemplated 
the  case  nor  provided  for  it.  It  was  an  act  of  original,  inherent 
sovereignty  by  the  people  themselves,  resulting  from  their  right 
to  change  the  form  of  government,  and  to  institute  a  new 
government,  whenever  necessary  for  their  safety  and  happiness. 
So  the  declaration-  of  independence  treats  it.  No  State  had 
presumed,  of  itself,  to  form  a  new  government,  or  provide  for 
the  exigencies  of  the  times,  without  consulting  congress  on  the 
subject ;  and  when  they  acted,  it  was  in  pursuance  of  the  re- 
commendation of  congress.  It  was,  therefore,  the  achievement 
of  the  whole,  for  the  benefit  of  the  whole.  The  people  of  the 
united  colonies  made  the  united  colonies  free  and  independent 
states,  and  absolved  them  from  allegiance  to  the  British  crown. 
The  declaration  of  independence  has,  accordingly,  always 
*been  treated  as  an  act  of  paramount  and  sovereign  au- 
thority, complete  and  perfect  per  se ;  and  ipso  facto 
working  an  entire  dissolution  of  all  political  connexion  with, 
and  allegiance  to,  Great  Britain.  And  this,  not  merely  as  a 
practical  fact,  but  in  a  legal  and  constitutional  view  of  the 
matter  by  courts  of  justice." 

The  first  question  which  this  passage  naturally  suggests  to 
the  mind  of  the  reader  is  this  :  if  two  or  more  nations  or  people, 
confessedly  separate,  distinct  and  independent,  each  having  its 
own  peculiar  government,  without  any  "direct  political  con- 
nexion with  each  other,"  yet  owing  the  same  allegiance  to  one 
common  superior,  should  unite  in  a  declaration  of  rights  which 
they  believed  belonged  to  all  of  them  alike,  would  that  circum- 
stance, alone,  make  them  "one  people?"  Stripped  of  the  cir- 
cumstances with  which  the  author  has  surrounded  it,  this  is,  at 


OUR  FEDERAL  GOVERNMENT.  38 

last,  the  only  proposition  involved.  If  Spain,  Naples  and  Hol- 
land, while  they  were  "dependencies"  of  the  imperial  crown  of 
France,  had  united  in  declaring  that  they  were  oppressed,  in 
the  same  mode  and  degree,  by  the  measures  of  that  crown,  and 
that  they  did,  for  that  reason,  disclaim  all  allegiance  to  it,  and 
assume  the  station  of  "free  and  independent  states,"  would  they 
thereby  have  become  one  people  ?  Surely  this  will  not  be  as- 
serted by  any  one.  We  should  see,  in  that  act,  nothing  more 
than  the  union  of  several  independent  sovereignties,  for  the 
purpose  of  effecting  a  common  object,  which  each  felt  itself  too 
weak  to  effect,  alone.  Nothing  would  be  more  natural,  than 
that  nations  so  situated  should  establish  a  common  military 
power,  a  common  treasury,  and  a  common  agency,  through 
which  to  carry  on  their  intercourse  with  other  powers  ;  but  that 
all  this  should  unite  them  together,  so  as  to  form  them  into  one 
nation,  is  a  consequence  not  readily  perceived.  The  case  here 
supposed  is  precisely  that  of  the  American  colonies,  if  those 
colonies  were,  in  point  of  fact,  separate,  distinct,  and  indepen- 
dent of  one  another.  If  they  were  so,  (and  I  think  it  has  been 
shown  that  they  were,)  then  the  fact  that  they  united  in  the 
declaration  of  independence  does  not  make  them  "  one  people," 
any  more  than  a  similar  declaration  would  have  made  Spain, 
Naples  and  Holland  one  people  ;  if  they  were  not  so,  then  they 
were  one  people  already,  and  the  declaration  of  independence 
did  not  render  them  either  more  or  less  identical.  It  is  true, 
the  analogy  here  supposed  does  not  hold  in  every  particular ; 
the  relations  of  the  colonies  to  one  another  were  certainly  closer, 
in  many  respects,  than  those  of  Spain,  Naples  and  Holland,  to 
one  another.  But  as  to  all  purposes  involved  in  the  present 
enquiry,  the  analogy  is  perfect.  The  effect  attributed  to  the 
declaration  of  independence  presupposes  that  the  *colo- 
nies  were  not  "one  people"  before;  an  effect  which  is  in  *- 
no  manner  changed  or  modified  by  any  other  circumstance  in 
their  relation  to  one  another.  That  fact,  alone,  is  necessary  to 
be  enquired  into ;  and  until  that  fact  is  ascertained,  the  author's 
reasoning  as  to  the  effect  of  the  declaration  of  independence,  in 
making  them  "one  people,"  does  not  apply.  He  is  obliged, 
therefore,  to  abandon  the  ground  previously  taken,  to  wit,  that 
the  colonies  were  one  people  before  the  declaration  of  indepen- 


39  TRUE  NATURE  AND  CHARACTER  OF 

dence.  And  having  abandoned  it,  he  places  the  colonies,  as  to 
this  question,  upon  the  footing  of  any  other  separate  and  dis- 
tinct nations ;  and,  as"  to  these,  it  is  quite  evident  that  the 
conclusion  which  he  has  drawn,  in  the  case  of  the  colonies,  could 
not  be  correct,  unless  it  would  be  equally  correct  in  the  case  of 
Spain,  Naples  and  Holland,  above  supposed. 

The  mere  fact,  then,  that  the  colonies  united  in  the  declara- 
tion of  independence,  did  not  necessarily  make  them  one  people. 
But  it  may  be  said  that  this  fact  ought,  at  least,  to  be  received 
as  proof  that  they  considered  themselves  as  one  people  already. 
The  argument  is  fair,  and  I  freely  let  it  go  for  what  it  is  worth. 
The  opinion  of  the  congress  of  1775,  whatever  it  may  have 
been,  and  however  strongly  expressed,  could  not  possibly  change 
the  historical  facts.  It  depended  upon  those  facts,  alone, 
whether  the  colonies  were  one  people  or  not.  They  might  by 
their  agreement,  expressed  through  their  agents  in  congress, 
make  themselves  one  people  through  all  time  to  come  ;  but 
their  power,  as  to  this  matter,  could  not  extend  to  the  time 
past.  Indeed,  it  is  contended,  not  only  by  our  author,  but  by 
others,  that  the  colonies  did,  by  and  in  that  act,  agree  to  become 
"  one  people  "  for  the  future.  They  suppose  that  such  agree- 
ment is  implied,  if  not  expressed,  in  the  following  passages. 
""We,  therefore,  the  representatives  of  the  United  States  of 
America,"  "  do,  in  the  name  and  by  the  authority  of  the  good 
people  of  these  colonies,  solemnly  publish  and  declare  that 
these  united  colonies  are,  and  of  right  ought  to  be,  free  and 
independent  states."  Let  us  test  the  correctness  of  this  opinion, 
by  the  history  of  the  time,  and  by  the  rules  of  fair  criticism. 

The  congress  of  1775,  by  which  independence  was  declared, 
was  appointed,  as  has  been  before  shown,  by  the  colonies  in 
their  separate  and  distinct  capacity,  each  acting  for  itself,  and 
not  conjointly  with  any  other.  They  were  the  representatives, 
each  of  his  own  colony,  and  not  of  any  other ;  each  had  authority 
to  act  in  the  name  of  his  own  colony,  and  not  in  that  of  any 
other  ;  each  colony  gave  its  own  vote  by  its  own  representa- 
tives, and  not  by  those  of  any  other  colony.  Of  course,  it  was 
r*4.ni  as  seParate  an<^  distinct  colonies  that  they  ^deliberated 
J  on  the  declaration  of  independence.  When,  therefore, 
they  declare,  in  the  adoption  of  that  measure,  that  they  act  as 


OUR  FEDERAL   GOVERNMENT.  40 

"the  representatives  of  the  United  States  of  America/'  and 
"  in  the  name  and  by  the  authority  of  the  good  people  of  these 
colonies,"  they  must  of  course  be  understood  as  speaking  in  the 
character  in  which  they  had  all  along  acted ;  that  is,  as  the  repre- 
sentatives of  separate  and  distinct  colonies,  and  not  as  the  joint  re- 
presentatives of  any  one  people.  A  decisive  proof  of  this  is  found 
in  the  fact  that  the  colonies  voted  on  the  adoption  of  that  measure 
in  their  separate  character,  each  giving  one  vote  by  all  its  own 
representatives,  who  acted  in  strict  obedience  to  specific  instruc- 
tions from  their  respective  colonies,  and  the  members  signed 
the  declaration  in  that  way.  So,  also,  when  they  declared  that 
"  these  united  colonies  are,  and  of  right  ought  to  be,  free  and 
independent  states,"  they  meant  only  that  their  respective 
communities,  which  until  then  had  been  dependent  colonies, 
should  thereafter  be  independent  states,  and  that  the  same 
union,  which  existed  between  them  as  colonies,  should  be  con- 
tinued between  them  as  states.  The  measure  under  considera- 
tion looked  only  to  their  relation  to  the  mother  country,  and 
not  to  their  relation  to  one  another;  and  the  sole  question 
before  them  was,  whether  they  should  continue  in  a  state  of 
dependence  on  the  British  crown,  or  not.  Having  determined 
that  they  would  not,  they  from  that  moment  ceased  to  be  colo- 
nies, and  became  states ;  united,  precisely  as  before,  for  the 
common  purpose  of  achieving  their  common  liberty.  The  idea 
of  forming  a  closer  union,  by  the  mere  act  of  declaring  them- 
selves independent,  could  scarcely  have  occurred  to  any  one  of 
them.  The  necessity  of  such  a  measure  must  have  been  ap- 
parent to  all,  and  it  had  long  before  engaged  their  attention  in 
a  different  form.  Men,  of  their  wisdom  and  forecast,  meditating 
a  measure  so  necessary  to  their  common  safety,  would  not  have 
left  it  as  a  mere  matter  of  inference  from  another  measure.  In 
point  of  fact,  it  was  already  before  them,  in  the  form  of  a  dis- 
tinct proposition,  and  had  been  so  ever  since  their  first  meeting 
in  May,  1775.*  It  is  impossible  to  suppose  *therefore,  rs(.,1-, 
in  common  justice  to  the  sagacity  of  congress,  that  they  *- 

*  A  document  which  I  have  not  met  with  elsewhere,  but  which  maybe  found 
in  the  Appendix  to  Professor  Tucker's  elaborate  and  instructive  Life  of  Jeffer- 
son, affords  important  evidence  upon  this  point.  As  early  as  May,  1775,  the 
plan  of  a  "  confederation  and  perpetual  union  "  among  the  colonies,  was  pre- 


41  TRUE  NATURE  AXD  CHARACTER  OF 

meant  any  thing  more  by  the  declaration  of  independence,  than 
simply  to  sever  the  tie  which  had  theretofore  bound  them  to 
England,  and  to  assert  the  rights  of  the  separate  and  distinct 
colonies,  as  separate  and  independent  States;  particularly  as 
the  language  which  they  use  is  fairly  susceptible  of  this  con- 
struction. The  instrument  itself  is  entitled,  "the  unanimous 
declaration  of  the  thirteen  United  States  of  America;"  of  States, 
separate  and  distinct  bodies  politic,  and  not  of  "one  people" 
or  nation,  composed  of  all  of  them  together;  "united,"  as  in- 
dependent States  may  be,  by  compact  or  agreement,  and  not 
amalgamated,  as  they  would  be,  if  they  formed  one  nation  or 
body  politic. 

Is  it  true  then,  as  the  author  supposes,  that  the  "  colonies 
did  not  severally  act  for  themselves,  and  proclaim  their  own  in- 
dependence?" It  is  true  that  they  acted  together;  but  is  it  not 
equally  true  that  each  acted  for  itself  alone,  without  pretending 
to  any  right  or  authority  to  bind  any  other  ?  Their  declaration 
was  simply  their  joint  expression  of  their  separate  wills ;  each 
expressing  its  own  will,  and  not  that  of  any  other;  each  bound 
by  its  own  act,  and  not  responsible  for  the  act  of  any  other. 
If  the  colonies  had  severally  declared  their  independence  through 

pared  and  proposed  for  adoption.  It  was  not  in  fact  adopted,  but  its  provi- 
sions show,  in  the  strongest  manner,  in  what  light  the  colonies  regarded  their 
relation  to  one  another.  The  proposed  union  was  called  "  a  firm  league  of 
friendship  ;"  each  colony  reserved  to  itself  "  as  much  as  it  might  think  proper 
of  its  own  present  laws,  customs,  rights,  privileges  and  peculiar  jurisdictions, 
within  its  own  limits ;  and  may  amend  its  own  constitution  as  may  seem  best 
to  its  own  assembly  or  convention  ;':  the  external  relations  of  the  colonies  were 
to  be  managed  by  their  general  government  alone,  and  all  amendments  of  their 
;'  constitution,"  as  they  termed  it,  were  to  be  proposed  by  congress  and  "  ap- 
proved by  a  majority  of  the  colony  assemblies."  It  can  scarcely  be  contended 
that  this  "  league  of  friendship,"  this  "  cenfederation  and  perpetual  union," 
would,  if  it  had  been  adopted,  have  rendered  the  people  of  the  several  colonies 
less  identical  than  they  were  before.  If,  in  their  own  opinion,  they  were  "  one 
people"  already,  no  league  or  confederation  was  necessary,  and  no  one  would 
have  thought  of  proposing  it.  The  very  fact,  therefore,  that  it  was  proposed, 
as  a  necessary  measure  "  for  their  common  defence  against  their  enemies,  for 
the  security  of  their  liberties  and  their  properties,  the  safety  of  their  persons 
and  families,  and  their  mutual  and  general  welfare,"  proves  that  they  did  not 
consider  themselves  as  already  "  one  people,"  in  any  sense  or  to  any  extent 
which  would  enable  them  ;o  effect  those  important  objects. 

This  proposition  was  depending  and  undetermined  at  the  time  of  the  declara- 
tion of  independence. 


OUR  FEDERAL   GOVERNMENT.  41 

their  own  legislatures,  and  had  afterwards  agreed  to  unite  their 
forces  together  to  make  a  common  cause  of  their  contest,  and  to 
submit  their  common  interests  to  the  management  of  a  common 
council  chosen  by  themselves,  wherein  would  their  situation 
have  been  different  ?  And  is  it  true  that  this  declaration  of  in- 
dependence "was  not  an  act  done  by  the  State  governments 
then  organized,  nor  by  persons  chosen  by  them?"  that  "it  was 
emphatically  the  act  of  the  whole  people  of  the  united  colonies,  by 
the  instrumentality  of  *their  representatives  chosen  for  that 
among  other  purposes  ?"  What  representatives  were  those  *- 
that  were  chosen  by  "the  people  of  the  united  colonies?  When  and 
how  were  they  chosen  ?  Those  who  declared  the  colonies  indepen- 
dent were  chosen  more  than  a  year  before  that  event ;  they  were 
chosen  by  the  colonies  separately,  and,  as  has  already  been 
shown,  through  the  instrumentality  of  their  own  "governments 
then  organized;"  they  were  chosen,  not  for  the  "purpose"  of 
declaring  the  colonies  independent,  but  of  protecting  them 
against  oppression,  and  bringing  about  a  reconciliation  with  the 
parent  country,  upon  fair  terms,  if  possible.  (Jefferson's  Notes, 
1st  ed.  128, 129.)  If  there  were  any  other  representatives  than 
these  concerned  in  the  declaration  of  independence,  if  that  act 
was  performed  by  representatives  chosen  by  "the  whole  people 
of  the  colonies;"  for  that  or  any  other  purpose,  if  any  such  re- 
presentatives could  possibly  have  been  chosen  by  the  colonies  as 
then  organized,  no  historical  record,  that  has  yet  met  my  view, 
contains  one  syllable  of  the  matter. 

The  author  seems  to  attach  but  little  importance  to  the  fact, 
that  several  of  the  colonies  had  established  separate  govern- 
ments for  themselves,  prior  to  the  declaration  of  independence. 
He  regards  this  as  of  little  consequence ;  because  he  thinks  that 
the  colonies  so  acted  only  in  pursuance  of  the  recommendation 
of  congress,  and  would  not  have  "presumed"  to  doit,  "with- 
out consulting  congress  upon  the  subject;"  and  because  the 
governments  so  established  were,  for  the  most  part,  designed  to 
be  temporary,  and  to  continue  only  during  the  contest  with 
England.  Such  recommendation  was  given  in  express  terms, 
to  New  Hampshire  and  South  Carolina,  in  November,  1775, 
and  to  Virginia,  in  December  of  that  year  ;  and  on  the  10th 
May,  1776,  "it  was  resolved  to  recommend  to  the  respective 
4 


42  TRUE  NATURE  AND  CHARACTER  OF 

assemblies  and  conventions  of  the  united  colonies  where  no 
government  sufficient  to  the  exigencies  of  their  affairs  had  been 
established,  to  adopt  such  a  government  as  should,  in  the  opinion 
of  the  representatives  of  the  people,  best  conduce  to  the  happi- 
ness and  safety  of  their  constituents  in  particular,  and  of 
America  in  general."  The  preamble  to  this  resolution  was  not 
adopted  till  the  15th  May.  (1  Elliott's  Debates,  80,  83.)  It 
is  evident,  from  the  language  here  employed,  that  congress 
claimed  no  power  over  the  colonies  as  to  this  matter,  and  no 
right  to  influence  or  control  them  in  the  exercise  of  the  impor- 
tant function  of  forming  their  own  governments.  It  recom- 
mended only;  and,  contemplating  the  colonies  as  separate  and 
distinct,  referred  it  to  the  assembly  or  convention  of  each,  to 
establish  any  form  of  government  which  might  be  acceptable  to 
its  own  people.  Of  what  consequence  was  it,  *whether 
-"  the  colonies  acted  upon  the  recommendation  and  advice 
of  others,  or  merely  upon  their  own  will  and  counsels  ?  With 
whatever  motive  the  act  was  performed,  it  was  one  of  supreme 
and  sovereign  power,  and  such  as  could  not  have  been  performed 
except  by  a  sovereign  people.  And  whether  the  government  so 
established  was  intended  to  last  for  ever,  or  only  for  a  limited 
time,  did  not  affect  its  character  as  an  act  of  sovereign  power. 
In  point  of  fact,  then,  the  colonies  which  established  such  gov- 
ernments did,  by  that  very  act,  assert  their  sovereignty  and  in- 
dependence. They  had  no  power,  under  their  charters,  to 
change  their  governments.  They  could  do  so  only  by  setting 
their  charters  aside,  and  acting  upon  their  inherent,  sovereign 
right :  and  this  was  revolution.  In  effect,  therefore,  many  of 
the  colonies  had  declared  their  independence  prior  to  the  4th 
July,  1776 ;  they  had  commenced  the  revolution,  and  were  con- 
sidered by  England  as  in  a  state  of  rebellion.  Of  Virginia  this 
is  emphatically  true.  Her  declaration  of  rights  was  made  on 
the  12th  of  June,  1776;  and  her  constitution  was  adopted  on 
the  29th  of  the  same  month.  This  constitution  continued  until 
1829.  Her  subsequent  declaration  of  independence,  on  the  4th 
of  July,  in  common  with  the  other  colonies,  was  but  a  more 
public,  though  not  a  more  solemn  affirmation  of  what  she  had 
previously  done  ;  a  pledge  to  the  whole  world,  that  what  she  had 
resolved  on  in  her  separate  character,  she  would  unite  with  the 


OUR    FEDERAL   GOVERNMENT.  43 

other  colonies  in  performing.  She  could  not  declare  herself 
free  and  independent  more  distinctly,  in  that  form,  than  she  had 
already  done,  by  asserting  her  sovereign  and  irresponsible  power, 
in  throwing  off  her  former  government,  and  establishing  a  new 
one  for  herself.* 

*  In  point  of  fact,  Virginia  declared  her  independence  on  the  15th  of  May, 
1776.  The  following  beautiful  allusion  to  that  scene  is  extracted  from  an  ad- 
dress delivered  by  Judge  Beverly  Tucker,  of  William  and  Mary  College,  before 
the  Petersburg  Lyceum,  on  the  15th  May,  1839. 

"  That  spectacle,  on  this  day  sixty-three  years,  Virginia  exhibited  to  the 
world ;  and  the  memory  of  that  majestic  scene  it  is  now  my  task  to  rescue  from 
oblivion.  It  was  on  that  day  that  she  renounced  her  colonial  dependence  on 
Great  Britain,  and  separated  herself  forever  from  that  kingdom.  Then  it  wag 
that,  bursting  the  manacles  of  a  foreign  tyranny,  she,  in  the  same  moment,  im- 
posed upon  herself  the  salutary  restrains  of  law  and  order.  In  that  moment  she 
'commenced  the  work  of  forming  a  government,  complete  within  itself;  and 
having  perfected  that  work,  she,  on  the  29th  of  June  in  the  same  year,  performed 
the  highest  function  of  independent  sovereignty,  by  adopting,  ordaining  and 
establishing  the  constitution  under  which  all  of  us  were  born.  Then  it  was 
that,  sufficient  to  herself  for  all  the  purposes  of  government,  she  prescribed 
that  oath  of  fealty  and  allegiance  to  her  sole  and  separate  sovereignty,  which 
all  of  us,  who  have  held  any  office  under  her  authority,  have  solemnly  called 
upon  the  Searcher  of  hearts  to  witness  and  record.  In  that  hour,  gentlemen, 
it  could  not  be  certainly  known,  that  the  other  colonies  would  take  the  same 
decisive  step.  It  was,  indeed,  expected.  In  the  same  breath  in  which  she  had 
declared  her  own  independence,  Virginia  had  advised  it.  She  had  instructed 
her  delegates  in  the  general  congress  to  urge  it;  and  it  was  by  the  voice  of  one 
of  her  sons,  whose  name  will  ever  proudly  live  in  her  history,  that  the  word  of 
power  was  spoken,  at  which  the  chain  that  bound  the  colonies  to  the  parent 
kingdom  fell  asunder,  'as  flax  that  severs  at  the  touch  of  fire.'  But  even  then 
and  while  the  terms  of  the  general  declaration  of  independence  were  yet  un- 
settled, hers  had  already  gone  forth.  The  voice  of  her  defiance  was  already 
ringing  in  the  tyrant's  ears  ;  hers  was  the  cry  that  summoned  him  to  the  strife  ; 
hers  was  the  shout  that  invited  his  vengeance:  'Me!  me!  Adsum  qui  fed;  in 
me,  convertite  ferrum.' " 

This  beautiful  address,  abounding  in  patriotic  sentiments,  and  sound  politi- 
cal doctrines,  clothed  in  the  richest  language,  ought  to  be  in  the  hands  of  every 
citizen,  and  particularly  of  those  of  Virginia.  The  following  extract  from  the 
Journals  of  the  Convention,  containing  the  history  of  this  interesting  event, 
cannot  fail  to  be  acceptable  to  every  American  reader. 

"  Wednesday,  May  15th,  1776. 

"  The  convention,  then,  according  to  the  order  of  the  day,  resolved  itself  into 
a  committee  on  the  state  of  the  colony  ;  and,  after  some  time  spent  therein,  Mr. 
President  resumed  the  chair,  and  Mr.  Gary  reported  that  the  committee  had, 
according  to  order,  had  under  their  consideration  the  state  of  the  colony,  and 
had  come  to  the  following  resolutions  thereupon ;  which  he  read  in  his  place, 


43  TRUE  NATURE  AND  CHARACTER  OF 

There  is  yet  another  view  of  this  subject,  which  *can- 
J  not  be  properly  omitted.    It  has  already  been  shown  that, 

and  afterwards  delivered  in  at  the  clerk's  table,  where  the  same  were  again 
twice  read,  and  unanimously  agreed  to,  one  hundred  and  twelve  members  being 
present. 

"  For  as  much  as  all  the  endeavors  of  the  united  colonies,  by  the  most  decent 
representations  and  petitions  to  the  king  and  parliament  of  Great  Britain,  to 
restore  peace  and  security  to  America  under  the  British  government,  and  a  re- 
union with  that  people,  upon  just  and  liberal  terms,  instead  of  a  redress  of 
grievances,  have  produced,  from  an  imperious  and  vindictive  administration, 
increased  insult,  oppression,  and  a  vigorous  attempt  to  effect  our  total  destruc- 
tion. By  a  late  act,  all  these  colonies  are  declared  to  be  in  rebellion,  and  out 
of  the  protection  of  the  British  crown,  our  properties  subjected  to  confiscation, 
our  people,  when  captivated,  compelled  to  join  in  the  plunder  and  murder  of 
their  relations  and  countrymen,  and  all  former  rapine  and  oppression  of  Ameri- 
cans declared  legal  and  just.  Fleets  and  armies  are  raised,  and  the  aid  of 
foreign  troops  engaged  to  assist  these  destructive  purposes.  The  king's  repre- 
sentative in  this  colony  hath  not  only  withheld  all  the  powers  of  government 
from  operating  for  our  safety,  but.  having  retired  on  board  an  armed  ship,  is 
carrying  on  a  piratical  and  savage  war  against  us,  tempting  our  slaves  by  every 
artifice  to  resort  to  him,  and  training  and  employing  them  against  their 
masters. 

"In  this  state  of  extreme  danger,  we  have  no  alternative  left,  but  an  abject 
submission  to  the  will  of  those  overbearing  tyrants,  or  a  total  separation  from 
the  crown  and  government  of  Great  Britain,  uniting  and  exerting  the  strength  of 
all  America  for  defence,  and  forming  alliances  with  foreign  powers  for  commerce 
and  aid  in  war.  Wherefore,  appealing  to  the  Searcher  of  all  hearts  for  the  sin- 
cerity of  former  declarations,  expressing  our  desire  to  preserve  our  connexion 
with  that  nation,  and  that  we  are  driven  from  that  inclination  by  their  wicked 
councils,  and  the  eternal  laws  of  self-preservation  ;  resolved,  unanimously,  that 
the  delegates  appointed  to  represent  this  colony  in  general  congress,  be  in- 
structed to  propose  to  that  respectable  body,  to  declare  the  united  colonies  free 
and  independent  slates,  absolved  from  all  allegiance  to,  or  dependence  upon  the 
crown  or  parliament  of  Great  Britain ;  and  that  they  give  the  assent  of  this 
colony  to  that  declaration,  and  to  whatever  measures  may  be  thought  proper 
and  necessary  by  the  congress,  for  forming  foreign  alliances,  and  a  confederation 
of  the  colonies,  at  such  time  and  in  such  manner  as  to  them  may  seem  best.  Pro- 
vided, that  the  power  of  forming  government  for,  and  the  regulations  of  the  in- 
ternal concerns  of  each  colony  be  left  to  the  respective  colonial  legislatures. 

"  Resolved,  unanimously,  that  a  committee  be  appointed  to  prepare  a  declara- 
tion of  rights,  and  such  a  plan  of  government,  as  will  be  most  likely  to  main- 
tain peace  and  order  in  this  colony,  and  secure  substantial  and  equal  liberty  to 
the  people. 

"  And  a  committee  was  appointed  of  the  following  gentlemen  : — Mr.  Archi- 
bald Cary,  Mr.  Meriwether  Smith,  Mr.  Mercer,  Mr.  Henry  Lee,  Mr.  Treasurer, 
Mr.  Henry,  Mr.  Dandridge,  Mr.  Edmund  Randolph,  Mr.  Gilmer,  Mr.  Bland,  Mr. 
Digges.  Mr.  Carrington,  Mr.  Thomas  Ludwel  Lee.  Mr.  Cabell,  Mr.  Jones,  Mr. 


OUR  FEDERAL   GOVERNMENT.  44 

prior  to  the  revolution,  *the  colonies  were  separate  and 
distinct,  and  were  not,  in  any  political  sense,  or  for  any  *• 
purpose  of  government,  "one  people."  The  sovereignty  over 
them  was  in  the  British  crown ;  but  that  sovereignty  was  not 
jointly  over  all,  but  separately  over  each,  and  might  have  been 
abandoned  as  to  some,  and  retained  as  to  others.  The  declara- 
tion of  independence  broke  this  connexion.  By  that  act,  and 
not  by  the  subsequent  recognition  of  their  independence,  the 
colonies  became  free  States.  What  then  became  of  the  sove- 
reignty of  which  we  speak  ?  It  could  not^  be  in  abeyance  ;  the 
moment  it  was  lost  by  the  British  crown  it  must  have  vested 
somewhere  else.  Doubtless  it  vested  in  the  states  themselves. 
But,  as  they  were  separate  and  distinct  as  colonies,  the  sove- 
reignty over  one  could  not  vest,  either  in  whole  or  in  part,  in 
any  other.  Each  took  to  itself  that  sovereignty  which  applied 
to  itself,  and  for  which  alone  it  had  contended  with  the  British 
crown,  to  wit,  the  sovereignty  over  itself.  Thus  each  colony 
became  a  free  and  sovereign  State.  This  is  the  character  which 
they  claim  in  the  very  terms  of  the  declaration  of  indepen- 
dence ;  in  this  character  they  formed  the  *  colonial  gov- 
eriynent,  and  in  this  character  that  government  always  *- 
regarded  them.  Indeed,  even  in  the  earlier  treaties  with  foreign 
powers,  the  distinct  sovereignty  of  the  States  is  carefully  recog- 
nized. Thus,  the  treaty  of  alliance  with  France,  in  1778,  is 
made  between  "  the  most  Christian  king  and  the  United  States 
of  North  America  to  wit :  New  Hampshire,  Massachusetts  Bay, 
Rhode  Island,  Connecticut,"  &c.,  enumerating  them  all  by  name. 
The  same  form  is  observed  in  the  treaty  of  amity  and  commerce 
with  the  States  General  of  the  United  Netherlands,  in  1782, 
and  in  the  treaty  with  Sweden,  in  1783.  In  the  convention 
with  the  Netherlands,  in  1782,  concerning  recaptured  vessels, 
the  names  of  the  States  are  not  recited,  but  "  the  United  States 
of  America"  is  the  style  adopted;  and  so  also  in  some  others. 

Blair,  Mr.  Fleming,  Mr.  Tazewell,  Mr.  Richard  Gary,  Mr.  Bullit,  Mr.  Watts,  Mr. 
Banister,  Mr.  Page,  Mr.  Starke,  Mr.  David  Mason,  Mr.  Adams,  Mr.  Read  and 
Mr.  Thomas  Lewis." 

It  is  impossible  to  contemplate  this  proceeding  on  the  part  of  Virginia,  with- 
ont  being  convinced  that  she  acted  from  her  own  free  and  sovereign  will;  and 
that  she,  at  least,  did  "  presume  "  to  establish  a  government  for  herself,  with- 
out the  least  regard  to  the  recommendation  or  the  pleasure  of  congress." 


46          TRUE  NATURE  AND  CHARACTER  OF 

This  circumstance  shows  that  the  two  forms  of  expression  were 
considered  equipollent;  and  that  foreign  nations,  in  treating 
with  the  revolutionary  government,  considered  that  they  treated 
with  distinct  sovereignties,  through  their  common  agent,  and 
not  with  a  new  nation,  composed  of  all  those  sovereign  coun- 
tries together.  It  is  true,  they  treated  with  them  jointly,  and 
not  severally ;  they  considered  them  all  bound  to  the  observ- 
ance of  their  stipulations,  and  they  believed  that  the  common 
authority,  which  was  established  between  and  among  them,  was 
sufficient  to  secure  that  object.  The  provisional  articles  with 
Great  Britain,  in  1782,  by  which  our  independence  was  acknow- 
ledged, proceed  upon  the  same  idea.  The  first  article  declares, 
that  "His  Britannic  Majesty  acknowledges  the  said  United 
States,  to  wit.  New  Hampshire,  Massachusetts  Bay,  Rhode 
Island  and  Providence  Plantations,  Connecticut,  New  York, 
New  Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia, 
North  Carolina,  South  Carolina  and  Georgia,  to  be  free,  sove- 
reign and  independent  States;  that  he  treats  with  them  as 
such,"  &c.  Thus  the  very  act,  by  which  their  former  sovereign 
releases  them  from  their  allegiance  to  him,  confirms  to  each  one 
by  name  the  sovereignty  within  its  own  limits,  and  acknow- 
ledges it  to  be  a  "  free,  sovereign,  and  independent  State ;" 
united,  indeed,  with  all  the  others,  but  not  as  forming  with 
them  any  new  and  separate  nation.  The  language  employed  is 
not  suited  to  convey  any  other  idea.  ...  If  it  had  been  in  the  con- 
templation of  the  parties,  that  the  States  had  merged  themselves 
into  a  single  nation,  something  like  the  following  formula  would 
naturally  have  suggested  itself  as  proper.  "  His  Britanic 
Majesty  acknowledges  that  New  Hampshire,  Massachusetts 
Bay,  &c.,  former  colonies  of  Great  Britain,  and  now  united 
together  as  one  people,  are  a  free,  sovereign  and  independent 
state,"  &c.  The  difference  between  the  two  forms  of  expres- 
sion, and  the  strict  adaptation  of  each  *to  the  state  of 
J  things  which  it  contemplates,  will  be  apparent  to  every 
reader. 

It  requires  strong  and  plain  proof  to  authorize  us  to  say,  that 
a  nation  once  sovereign  has  ceased  to  be  so.  And  yet  our  au- 
thor requires  us  to  believe  this  of  the  colonies,  although  he  ac- 
knowledges that  he  cannot  tell,  with  any  degree  of  confidence 


OUR  FEDERAL   GOVERNMENT.  47 

or  precision,  when,  how,  or  to  what  extent  the  sovereignty, 
which  they  acquired  by  declaring  their  independence  was  sur- 
rendered. According  to  him,  the  colonies  are  to  be  presumed 
to  have  yielded  this  sovereignty  to  a  government  established  by 
themselves  for  a  special  and  temporary  purpose,  which  existed 
only  at  their  will,  and  by  their  aid  and  support ;  whose  powers 
were  wholly  undefined,  and  for  the  most  part,  exercised  by 
usurpation  on  its  part,  and  legitimated  only  by  the  acquiescence 
of  those  who  appointed  it ;  whose  authority  was  without  any 
adequate  sanction  which  it  could  itself  apply,  and  which,  as  to 
all  the  important  functions  of  sovereignty,  was  a  mere  name — 
the  shadow  of  power  without  its  substance !  If  the  fact  was 
really  so,  I  venture  to  affirm  that  the  history  of  the  world  af- 
fords no  similar  instance  of  folly  and  infatuation. 

But,  whatever  may  have  been  the  condition  of  the  colonies 
prior  to  1781,  there  is  no  room  for  doubt  on  the  subject,  after 
the  final  ratification  of  the  articles  of  confederation  in  that 
year.  Those  articles  declare  that  "  each  State  retains  its 
sovereignty,  freedom  and  independence,  and  every  power,  juris- 
diction and  right,  which  is  not,  by  this  confederation  expressly 
delegated  to  the  United  States,  in  congress  assembled."  The 
obvious  construction  of  this  clause  requires  that  we  should  ap- 
ply these  latter  words,  only  to  "powers,  jurisdiction  and  rights;" 
some  of  which,  as  enjoyed  by  the  States  under  the  previous 
government,  were  clearly  surrendered  by  the  articles  of  con- 
federation. But  their  entire  sovereignty,  their  entire  freedom, 
and  their  entire  independence,  are  reserved,  for  these  are  not 
partible.  Indeed,  this  is  clear  enough,  from  the  provisions  of 
that  instrument,  which,  throughout,  contemplate  the  States  as 
free,  sovereign  and  independent.  It  is  singular,  too,  that  it 
should  escape  the  observation  of  any  one,  that  the  very  fact  of 
adopting  those  articles,  and  the  course  pursued  in  doing  so,  at- 
test, with  equal  clearness  and  strength,  the  previous  sovereignty 
and  independence  of  the  States.  What  had  the  States  in  their 
separate  character  to  do  with  that  act,  if  they  formed  altogether 
"one  people?"  And  yet  the  States,  and  the  States  alone, 
performed  it,  each  acting  for  itself,  and  binding  itself.  The 
articles  were  confirmed  by  ten  States,  as  early  as  1778,  by  an- 


TRUE  NATURE  AND  CHARACTER  OF 


r*48i  other  in  1779'  ancl  bv  anotlier  in  *1^80  J  anc^  vet  tliey 

were  not  obligatory  until  Maryland  acceded  to  them, 
1781.  Nothing  less  than  the  ratification  of  them  by  all  the 
States,  each  acting  separately  for  itself,  was  deemed  sufficient 
to  give  them  any  binding  force  or  authority. 

There  is  much  force  and  meaning  in  the  word  "retains,"  as  it 
occurs  in  the  clause  above  quoted.  Nothing  can  properly  be 
said  to  be  retained,  which  'was  not  possessed  before;  and  of 
course,  the  States  possessed  before  "  sovereignty,  freedom  and 
independence."  These  they  retained  without  any  qualification, 
or  limitation,  and  they  also  retained  every  "  power,  jurisdiction 
and  right,"  which  they  did  not  then  'expressly  surrender. 

If  these  views  of  the  subject  be  not  wholly  deceptive,  our 
author  has  hazarded,  without  due  caution,  the  opinion  that  the 
colonies  formed  "one  people,"  either  before  or  after  the  decla- 
ration of  independence  ;  and  that  they  are  not  to  be  regarded 
as  sovereign  States,  after  that  event.  For  myself,  I  profess  my 
utter  inability  to  perceive,  in  their  condition,  any  nearer  ap- 
proach to  political  personality  or  individuality,"  than  may  be 
found  in  a  mere  league  or  confederation  between  sovereign  and 
independent  states  ;  and  a  very  loose  confederation  theirs  un- 
doubtedly was. 

The  third  division  of  the  work  commences  with  a  history  of 
the  adoption  of  the  constitution.  This  also  is  given  in  an 
abridged  form  ;  but  it  omits  nothing  which  can  be  considered 
material  to  the  enquiry.  Perhaps  the  author  has  fallen  into 
one  error,  an  unimportant  one,  certainly,  in  stating  that  "  at 
the  time  and  place  appointed,  the  representatives  of  twelve 
States  assembled."  When  the  deputies  first  met  in  Philadel- 
phia, in  May,  1787,  the  representatives  of  only  nine  States  ap- 
peared ;  they  were,  soon  after,  joined  by  those  of  three  others. 
The  author  next  proceeds  to  state  the  various  objections  which 
were  urged  against  the  constitution,  with  the  replies  thereto  ;  to 
examine  the  nature  of  that  instrument  ;  to  ascertain  whether  it 
be  a  compact  or  not  ;  to  enquire  who  is  the  final  judge  or  inter- 
preter in  constitutional  controversies  ;  to  lay  down  rules  of  in- 
terpretation ;  and,  finally,  to  examine  the  constitution  in  its 
several  departments  and  separate  clauses.  In  the  execution  of 
this  part  of  his  task,  he  has  displayed  great  research,  laborious 


OUR,  FEDERAL   GOVERNMENT.  4g 

industry,  and  extensive  judicial  learning.  The  brief  summary 
which  he  has  given  of  the  arguments  by  which  the  constitution 
was  assailed  on  the  one  hand,  and  defended  on  the  other,  is  not 
only  interesting  as  matter  of  history,  but  affords  great  aid  in 
understanding  that  instrument.  We  should  be  careful,  however, 
not  to  attach  to  these  discussions  an  undue  importance.  All  the 
members  of  the  *  various  conventions  did  not  engage  in 
the  debates,  and,  of  course,  we  have  no  means  of  de- 
termining by  what  process  of  reasoning  they  were  led  to  their 
conclusions.  And  we  cannot  reasonably  suppose  that  the  de- 
baters always  expressed  their  deliberate  and  well  weighed  opin- 
ions in  all  the  arguments,  direct  and  collateral,  by  which  they 
sought  to  achieve  a  single  great  purpose.  We  are  not,  there- 
fore, to  consider  the  constitution  as  the  one  thing  or  the  other, 
merely  because  some  of  the  framers,  or  some  of  the  adopters  of 
it,  chose  so  to  characterize  it  in  their  debates.  Their  arguments 
are  valuable  as  guides  to  our  judgments,  but  not  as  authority 
to  bind  them. 

In  the  interpretation  of  the  constitution,  the  author  founds 
himself,  whenever  he  can,  upon  the  authority  of  the  supreme 
court.  This  was  to  be  expected ;  for,  in  so  doing,  he  has,  in 
most  cases,  only  reiterated  his  own  judicial  decisions.  We 
could  not  suppose  that  one,  whose  opinions  are  not  lightly 
adopted,  would  advance,  as  a  commentator,  a  principle  which  he 
rejected  as  a  judge.  In  most  cases,  too,  no  higher  authority  in 
the  interpretation  of  the  constitution  is  known  in  our  systems, 
and  none  better  could  be  desired.  It  is  only  in  questions  of 
political  power,  involving  the  rights  of  the  States  in  reference 
to  the  federal  government,  that  any  class  of  politicians  are  dis- 
posed to  deny  the  authority  of  the  judgments  of  the  supreme 
court.  We  shall  have  occasion  to  examine  this  subject  more  at 
large,  in  a  subsequent  part  of  this  review. 

In  discussing  the  various  clauses  of  the  constitution,  the  au- 
thor displays  great  research,  and  a  thorough  acquaintance  with 
the  history  of  that  instrument.  It  is  not  perceived,  however, 
that  he  has  presented  any  new  views  of  it,  or  offered  any  new 
arguments  in  support  of  the  constructions  which  it  has  hereto- 
fore received.  As  a  compendium  of  what  others  have  said  and 
done  upon  the  subject,  his  work  is  very  valuable.  It  facilitates 


49  TRUE  NATURE  AND  CHARACTER  OF 

investigation,  whilst,  at  the  same  time,  it  is  so  full  of  matt:r, 
as  to  render  little  farther  investigation  necessary.  Even  in  this 
view  of  the  subject,  however,  it  would  have  been  much  more 
valuable  if  it  had  contained  references  to  the  authorities  on 
which  its  various  positions  are  founded,  instead  of  merely  ex- 
tracting their  substance.  The  reader  who,  with  this  book  as 
his  guide,  undertakes  to  acquaint  himself  with  the  Constitution 
of  the  United  States,  must  take  the  authority  of  the  author  as 
conclusive,  in  most  cases;  or  else  he  will  often  find  himself  per- 
plexed to  discover  the  sources  from  which  he  derives  his  infor- 
mation. This  is  a  great  defect  in  a  work  of  this  sort,'  and  is 
the  less  excusable,  because  it  might  have  been  easily  avoided. 
r^cA-i  A  writer  who  undertakes  to  furnish  a  treatise  *upon  a 
frame  of  government,  in  relation  to  which  great  and 
contested  political  questions  have  arisen,  owes  it  alike  to  his  reader 
and  to  himself,  to  name  the  sources  whence  he  draws  whatever  in- 
formation he  ventures  to  impart,  and  the  authorities  upon  which 
he  founds  whatever  opinions  he  ventures  to  inculcate.  The  rea- 
der requires  this  for  the  satisfaction  of  his  own  judgment ;  and 
the  writer  ought  to  desire  it  as  affording  the  best  evidence  of 
his  own  truth  and  candor. 

In  this  division  of  the  work,  the  author  pursues  the  idea  cau- 
tiously hinted  in  the  first  division,  and  more  plainly  announced 
in  the  second ;  and  he  now  carries  it  boldly  out  in  its  results. 
Having  informed  us  that,  as  colonies,  we  were  "for  many  pur- 
poses one  people,"  and  that  the  declaration  of  independence 
made  us  "  a  nation  de  facto"  he  now  assumes  the  broad  ground 
that  this  "  one  people,"  or  nation  de  facto,  formed  the  constitu- 
tion under  which  we  live.  The  consequences  of  this  position 
are  very  apparent  throughout  the  remainder  of  the  work.  The 
inferences  fairly  deduced  from  it  impart  to  the  constitution  its 
distinctive  character,  as  the  author  understands  it;  and,  of 
course,  if  this  fundamental  position  be  wrong,  that  instrument 
is  not,  in  many  of  its  provisions  what  he  represents  it  to  be. 
The  reader,  therefore,  should  settle  this  question'  for  himself  in 
the  outset ;  because,  if  he  differ  from  the  author  upon  this  point, 
he  will  be  compelled  to  reject  by  far  the  most  important  part  of 
the  third  and  principal  division  of  these  commentaries. 

The  opinion,  that  the  constitution  was  formed  by  "  the  people 


OUR  FEDERAL    GOVERNMENT.  50 

of  the  United  States,"  as  contradistinguished  from  the  people 
of  the  several  States,  that  is,  as  contradistinguished  from  the 
States  as  such,  is  founded  exclusively  on  the  particular  terms  of 
the  preamble.  The  language  is,  "  We,  the  people  of  the  United 
States,  do  ordain  and  establish  this  Constitution  for  the  United 
States  of  America."  "  The  people  do  ordain  and  establish,  not 
contract  and  stipulate  with  each  other.  The  people  of  the 
United  States,  not  the  distinct  people  of  a  particular  State 
•with  the  people  of  the  other  States."  In  thus  relying  on  the 
language  of  the  preamble,  the  author  rejects  the  lights  of  his- 
tory altogether.  I  will  endeavour  in  the  first  place  to  meet  him 
on  his  own  ground. 

It  is  an  admitted  rule,  that  the  preamble  of  a  statute  may  be 
resorted  to  in  the  construction  of  it ;  and  it  may,  of  course,  be 
used  to  the  same  extent  in  the  construction  of  a  constitution, 
which  is  a  supreme  law.  But  the  only  purpose  for  which  it  can 
be  used  is  to  aid  in  the  discovery  of  the  true  object  and  inten- 
tion of  the  law,  where  these  *would  otherwise  be  doubt-  r  *  ri  -i 
ful.  The  preamble  can,  in  no  case,  be  allowed  to  contra- 
dict the  law,  or  to  vary  the  meaning  of  its  plain  language. 
Still  less  can  it  be  used  to  change  the  true  character  of  the  law- 
making  power.  If  the  preamble  of  the  Constitution  had  de- 
clared that  it  was  made  by  the  people  of  France  or  England,  it 
might,  indeed,  have  been  received  as  evidence  of  that  fact,  in 
the  absence  of  all  proof  to  the  contrary ;  but  surely  it  would 
not  be  so  received  against  the  plain  testimony  of  the  instrument 
itself,  and  the  authentic  history  of  the  transaction.  If  the 
convention  which  formed  the  Constitution  was  not,  in  point  of 
fact,  a  convention  of  the  people  of  the  United  States,  it  had  no 
right  to^give  itself  that  title ;  nor  had  it  any  right  to  act  in  that 
character,  if  it  was  appointed  by  a  different  power.  And  if  the 
Constitution,  when  formed,  was  adopted  by  the  several  States, 
acting  through  their  separate  conventions,  it  is  historically  un- 
true that  it  was  adopted  by  the  aggregate  people  of  the  United 
States.  The  preamble,  therefore,  is  of  no  sort  of  value  in  set- 
tling this  question;  and  it  is  matter  of  just  surprise  that  it 
should  be  so  often  referred  to,  and  so  pertinaciously  relied  on, 
for  that  purpose.  History  alone  can  settle  all  difficulties  upon 
this  subject. 


51  TRUE  NATURE  AND  CHARACTER  OF 

The  history  of  the  preamble  itself  ought  to  have  convinced 
our  author,  that  the  inference  which  he  draws  from  it  could  not 
be  allowed.  On  the  6th  of  August,  1787,  the  committee 
appointed  for  that  purpose  reported  the  first  draft  of  a  consti- 
tution. The  preamble  was  in  these  words :  "  "We,  the  people  of 
the  States  of  New  Hampshire,  Massachusetts,  Rhode  Island 
and  Providence  Plantations,  Connecticut,  New  York,  New 
Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North 
Carolina,  South  Carolina  and  Georgia,  do  ordain,  declare  and 
establish  the  following  constitution,  for  the  government  of  our- 
selves and  our  posterity."  (1  Elliott's  Debates,  255.)  On  the 
very  next  day  this  preamble  was  unanimously  adopted  ;  and  the 
reader  will  at  once  perceive,  that  it  carefully  preserves  the  dis- 
tinct sovereignty  of  the  States,  and  discountenances  all  idea  of 
consolidation.  (Ib.  263.)  The  draft  of  the  constitution  thus 
submitted  was  discussed,  and  various  alterations  and  amend- 
ments adopted,  (but  without  any  change  in  the  preamble,)  until 
the  8th  of  September,  1787,  when  the  following  resolution  was 
passed :  "It  was  moved  and  seconded  to  appoint  a  committee 
of  five,  to  revise  the  style  of,  and  arrange  the  articles  agreed 
to,  by  the  house;  which  passed  in  the  affirmative."  (Ib.  324.) 
It  is  manifest  that  this  committee  had  no  power  to  change  the 
meaning  of  any  thing  which  had  been  adopted,  but  were 
authorized  merely  to  "  revise  the  style,"  and  arrange  the  mat- 
ter  in  proper  order.  On  the  12th  of  the  same  *month 
•J  they  made  their  report.  The  preamble,  as  they  reported 
it,  is  in  the  following  words  :  "We,  the  people  of  the  United 
States,  in  order  to  form  a  more  perfect  union,  to  establish  jus- 
tice, insure  domestic  tranquillity,  provide  for  the  common 
defence,  promote  the  general  welfare,  and  secure  the  blessings 
of  liberty  to  ourselves  and  our  posterity,  do  ordain  and  estab- 
lish this  constitution  for  the  United  States  of  America."  (Ib. 
326.)  It  does  not  appear  that  any  attempt  was  made  to  change 
this  phraseology  in  any  material  point,  or  to  reinstate  the  ori- 
ginal. The  presumption  is,  therefore,  that  the  two  were  con- 
sidered as  substantially  the  same,  particularly  as  the  committee 
had  no  authority  to  make  any  change,  except  in  the  style.  The 
difference  in  the  mere  phraseology  of  the  two  was  certainly  not 
overlooked ;  for  on  the  13th  September,  1787,  "  it  was  moved 


OUR  FEDERAL   GOVERNMENT.  52 

and  seconded  to  proceed  to  the  comparing  of  the  report  from 
the  committee  of  revision,  with  the  articles  which  were  agreed 
to  by  the  house,  and  to  them  referred  for  arrangement ;  which 
passed  in  the  affirmative.  And  the  same  was  read  by  para- 
graphs, compared,  and,  in  some  places,  corrected  and  amended." 
(Ib.  338.)  In  what  particulars  these  corrections  and  amend- 
ments were  made,  we  are  not  very  distinctly  informed.  The 
only  change  which  was  made  in  the  preamble,  was  by  striking 
out  the  word  "to,"  before  the  words  "establish  justice;"  and 
the  probability  is,  that  no  other  change  was  made  in  any  of  the 
articles,  except  such  as  would  make  "  the  report  of  the  com- 
mittee of  revision"  "correspond  with  the  articles  agreed  to  by 
the  house."  The  inference,  therefore,  is  irresistible,  that  the 
convention  considered  the  preamble  reported  by  the  committee 
of  revision,  as  substantially  corresponding  with  the  original 
draft,  as  unanimously  "agreed  to  by  the  house." 

There  is,  however,  another  and  a  perfectly  conclusive  reason 
for  the  change  of  phraseology,  from  the  States  by  name,  to  the 
more  general  expression  "the  United  States;"  and  this,  too, 
without  supposing  that  it  was  intended  thereby  to  convey  a  dif- 
ferent idea  as  to  the  parties  to  the  constitution.  The  revised 
draft  contained  a  proviso,  that  the  constitution  should  go  into 
operation  when  adopted  and  ratified  by  nine  States.  It  was,  of 
course,  uncertain  whether  more  than  nine  would  adopt  it,  or 
not,  and  if  they  should  not,  it  would  be  altogether  improper  to 
name  them  as  parties  to  that  instrument.  As  to  one  of  them, 
Rhode  Island,  she  was  not  even  represented  in  the  convention, 
and,  consequently,  the  others  had  no  sort  of  right  to  insert  her  as 
a  party.  Hence  it  became  necessary  to  adopt  a  form  of  expres- 
sion which  would  apply  to  those  who  should  ratify  the  constitu- 
tion, and  *and  not  to  those  who  should  refuse  to  do  so. 
The  expression  actually  adopted  answers  that  purpose  '- 
fully.  It  means  simply,  "We,  the  people  of  those  States  who 
have  united  for  that  purpose,  do  ordain,"  &c.  This  construc- 
tion corresponds  with  the  historical  fact,  and  reconciles  the 
language  employed  with  the  circumstances  of  the  case.  Indeed, 
similar  language  was  not  unusual,  through  the  whole  course  of 
the  revolution.  "The  people  of  his  majesty's  colonies,"  "the 
people  of  the  united  colonies,"  "the  people  of  the  United 


53 

States,"  are  forms  of  expression  which  frequently  occur,  with- 
out intending  to  convey  any  other  idea  than  that  of  the  people 
of  the  several  colonies  or  States. 

It  is,  perhaps,  not  altogether  unworthy  of  remark,  in  refer- 
ence to  this  enquiry,  that  the  word  "people"  has  no  plural  ter- 
mination in  our  language.  If  it  had,  the  probability  is  that  the 
expression  would  have  been  "we,  the  peoples,"  conveying,  dis- 
tinctly, the  idea  of  the  people  of  the  several  States.  But,  as 
no  such  plural  termination  is  known  in  our  language,  the  least 
that  we  can  say  is,  that  the  want  of  it  affords  no  argument  in 
favor  of  the  author's  position. 

This  brief  history  of  the  preamble,  collected  from  the  Jour- 
nals of  the  Convention,  will  be  sufficient  to  show  that  the  author 
has  allowed  it  an  undue  influence  in  his  construction  of  the 
constitution.  It  is  not  from  such  vague  and  uncertain  premi- 
ses, that  conclusions,  so  important  and  controlling,  can  be 
wisely  drawn.  The  author,  however,  is  perfectly  consistent 
with  himself  in  the  two  characters  in  which  he  appears  before 
us  ;  the  commentator  takes  no  ground  which  the  judge  does  not 
furnish.  It  is  remarkable  that  although  this  question  was 
directly  presented  in  the  case  of  Martin  vs.  Hunter's  Lessees, 
and  although  the  fact,  that  the  Constitution  of  the  United 
States  "was  ordained  and  established,  not  by  the  States  in 
their  sovereign  capacities,  but  emphatically  by  the  people  of 
the  United  States,"  is  made  the  foundation  of  the  judgment 
of  the  supreme  court  in  that  case ;  yet,  Judge  Story,  in  deliv- 
ering the  opinion  of  the  court,  rests  that  position  upon  the  pre- 
amble alone,  and  offers  no  other  argument  whatever  to  support 
it.  And  this  too,  although,  in  his  own  opinion,  upon  the  right 
decision  of  that  case  rested  "  some  of  the  most  solid  principles 
which  have  hitherto  been  supposed  to  sustain  and  protect  the 
Constitution  of  the  United  States."  It  is  much  to  be  regretted, 
that  principles  so  important  should  be  advanced  as  mere  dogmas, 
either  by  our  judges,  or  by  the  instructors  of  our  youth. 

In  this  case,  as  in  others,  however,  we  ought  not  to'  be  sat- 
isfied with  simply  proving  that  the  author's  conclusions  are  not 
warranted  by  the  facts  and  arguments  from  which  he  derives 
r*<ui  ^kem.  Justice  *to  the  subject  requires  a  much  more  full 
-1  and  detailed  examination  of  this  important  and  funda- 
mental question. 


OUR  FEDERAL   GOVERNMENT.  54 

I  have  endeavored  to  show,  in  the  preceding  part  of  this 
review,  that  the  people  of  the  several  States,  while  in  a  colo- 
nial condition,  were  not  "  one  people  "  in  any  political  sense  of 
the  terms ;  that  they  did  not  hecome  so  by  the  declaration  of 
independence,  but  that  each  State  became  a  complete  and  per- 
fect sovereignty  within  its  own  limits ;  that  the  revolutionary 
government,  prior  to  the  establishment  of  the  confederation, 
was,  emphatically,  a  government  of  the  States  as  such,  through 
congress,  as  their  common  agent  and  representative,  and  that, 
by  the  articles  of  confederation,  each  State  expressly  reserved 
its  entire  sovereignty  and  independence.  In  no  one  of  the  various 
conditions,  through  which  we  have  hitherto  traced  them,  do  we 
perceive  any  feature  of  consolidation ;  but  their  character  as 
distinct  and  sovereign  States  is  always  carefully  and  jealously 
preserved.  We  are,  then,  to  contemplate  them  as  sovereign 
States,  when  the  first  movements  towards  the  formation  of  the 
present  constitution  were  made. 

Our  author  has  given  a  correct  history  of  the  preparatory 
steps  towards  the  call  of  a  convention.  It  was  one  of  those 
remarkable  events,  (of  which  the  history  of  the  world  affords 
many  examples,)  which  have  exerted  the  most  important  influ- 
ence upon  the  destiny  of  mankind,  and  yet  have  sprung  from 
causes  which  did  not  originally  look  to  any  such  results.  It  is 
true,  the  defects  of  the  confederation,  and  its  total  inadequacy 
to  the  purposes  of  an  effective  government,  were  generally 
acknowledged ;  but  I  am  not  aware  that  any  decisive  step  was 
taken  in  any  of  the  States,  for  the  formation  of  a  better  sys- 
tem, prior  to  the  year  1786.  In  that  year,  the  difficulties  and 
embarrassments  under  which  our  trade  suffered,  in  consequence 
of  the  conflicting  and  often  hostile  commercial  regulations  of 
the  several  States,  suggested  to  the  legislature  of  Virginia  the 
necessity  of  forming  among  all  the  States  a  general  system, 
calculated  to  advance  and  protect  the  trade  of  all  of  them. 
They  accordingly  appointed  commissioners,  to  meet  at  Annapo- 
lis commissioners  from  such  of  the  other  States  as  should 
approve  of  the  proceeding,  for  the  purpose  of  preparing  a  uni- 
form plan  of  commercial  regulations,  which  was  to  be  submitted 
to  all  the  States,  and,  if  by  them  ratified  and  adopted,  to  be 
executed  by  congress.  Such  of  the  commissioners  as  met,  how- 


54  TRUE  NATURE  AND  CHARACTER  OF 

ever,  soon  discovered  that  the  execution  of  the  particular  trust 
with  which  they  were  clothed,  involved  other  subjects  not  within 
their  commission,  and  which  could  not  be  properly  adjusted 
without  a  great  *enlargement  of  their  powers.  They 
L  J  therefore  simply  reported  this  fact,  and  recommended  to 
their  respective  legislatures  to  appoint  delegates  to  meet  in  gen- 
eral convention  in  Philadelphia,  for  the  purpose  not  merely  of 
forming  a  uniform  system  of  commercial  regulations,  but  of 
reforming  the  government  in  any  and  every  particular  in  which 
the  interests  of  the  States  might  require  it.  This  report  was 
also  transmitted  to  congress,  who  approved  of  the  recommenda- 
tion it  contained,  and  on  the  21st  of  February,  1787,  resolved, 
"  that  in  the  opinion  of  congress,  it  is  expedient  that,  on  the 
second  Monday  in  May  next,  a  convention  of  delegates  who 
shall  have  been  appointed  by  the  several  States,  be  held  at  Phila- 
delphia, for  the  sole  and  express  purpose  of  revising  the  articles 
of  confederation,  and  reporting  to  congress  and  the  several 
legislatures,  such  alterations  and  provisions  therein,  as  shall, 
when  agreed  to  in  congress,  and  confirmed  by  the  States,  render 
the  federal  constitution  adequate  to  the  exigencies  of  govern- 
ment, and  the  preservation  of  the  union."  (1  Elliott's  Debates, 
155.) 

Such  was  the  origin  of  the  convention  of  1787.  It  is  apparent 
that  the  delegates  to  that  body  were  to  be  "appointed  by  the 
several  States,"  and  not  by  "the  people  of  the  United  States  ;" 
that  they  were  to  report  their  proceedings  to  "  congress  and  the 
several  legislatures,"  and  not  to  "the  people  of  the  United 
States;"  and  that  their  proceedings  were  to  be  part  of  the  con- 
stitution, only  when  "agreed  to  in  congress  and  confirmed  by 
the  States,"  and  not  when  confirmed  by  "the  people  of  the 
United  States."  Accordingly,  delegates  were,  in  point  of  fact, 
appointed  by  the  States ;  those  delegates  did,  in  point  of  fact, 
report  to  congress  and  the  States  ;  and  congress  did,  in  point  of 
fact,  approve,  and  the  States  did,  in  point  of  fact,  adopt,  ratify 
and  confirm  the  constitution  which  they  formed.  No  other 
agency  than  that  of  the  States  as  such,  and  of  congress,  which 
was  strictly  the  representative  of  the  States,  is  to  be  discerned 
in  any  part  of  this  whole  proceeding.  We  may  well  ask,  there- 
fore, from  what  unknown  source  our  author  derives  the  idea, 


OUR  FEDERAL   GOVERNMENT.  55 

that  the  constitution  was  formed  by  "the  people  of  the  United 
States,"  since  the  history  of  the  transaction,  even  as  he  has 
himself  detailed  it,  proves  that  "the  people  of  the  United 
States"  did  not  appoint  delegates  to  the  convention,  were  not 
represented  in  that  body,  and  did  not  adopt  and  confirm  its  act 
as  their  own ! 

Even,  however,  if  the  question  now  before  us  be  not,  .merely 
and  exclusively,  a  question  of  historical  fact,  there  are  other 
views  of  it  scarcely  less  decisive  against  our  author's  position. 
In  the  first  place,  I  have  to  remark,  that  there  were  no  such 
people  as  "the  people  of  the  United  States,"  in  the  sense  in 
which  he  uses  those  terms.  The  *articles  of  confedera-  PA-fin 
tion  formed,  at  that  time,  the  only  government  of  the  L 
United  States ;  and,  of  course,  we  are  to  collect  from  them 
alone  the  true  nature  of  the  connexion  of  the  States  with  one 
another.  Without  deeming  it  necessary  to  enumerate  all  the 
powers  which  they  conferred  on  congress,  it  is  sufficient  to  re- 
mark that  they  were  all  exercised  in  the  name  of  the  States,  as 
free,  sovereign  and  independent  States.  Congress  was,  in  the 
strictest  sense,  the  representative  of  the  States.  The  members 
were  appointed  by  the  States,  in  whatever  mode  each  State  might 
choose,  without  reference  either  to  congress  or  the  other  States. 
They  could,  at  their  own  will  and  pleasure,  recall  their  repre- 
sentatives, and  send  others  in  their  places,  precisely  as  any 
sovereign  may  recall  his  minister  at  a  foreign  court.  The  mem- 
bers voted  in  congress  by  States,  each  State  having  one  vote, 
whatever  might  be  the  number  of  its  representatives.  There 
was  no  president,  or  other  common  executive  head.  The  States 
alone,  as  to  all  the  more  important  operations  of  the  govern- 
ment, were  relied  on  to  execute  the  resolves  of  congress.  In  all 
this,  and  in  other  features  of  the  confederation  which  it  is  un- 
necessary to  enumerate,  we  recognize  a  league  between  inde- 
pendent sovereignties,  and  not  one  nation  composed  of  all  of 
them  together.  It  would  seem  to  follow,  as  a  necessary  con- 
sequence, that  if  the  States,  thus  united  together  by  league,  did 
not  form  one  nation,  there  could  not  be  a  citizen  or  subject  of 
that  nation.  Indeed,  congress  had  no  power  to  make  such  citi- 
zen, either  ly  naturalization  or  otherwise.  It  is  true,  the  citi- 
zens of  every  State  were  entitled,  with  certain  exceptions,  such 
5 


5(3  TRUE  NATURE  AND  CHARACTER  OF 

as  paupers,  vagabonds,  &c.,  to  all  the  privileges  of  citizens  of 
every  other  State,  when  -within  the  territories  thereof;  but  this 
was  by  express  compact  in  the  articles  of  confederation,  and 
did  not  otherwise  result  from  the  nature  of  their  political  con- 
nexion. It  was  only  by  virtue  of  citizenship  in  some  particular 
State,  that  its  citizens  could  enjoy  within  any  other  State  the 
rights  of  citizens  thereof.  They  were  not  known  as  citizens  of 
the  United  States,  in  the  legislation  either  of  congress  or  of  the 
several  States.  He  who  ceased  to  be  a  citizen  of  some  particu- 
lar State,  without  becoming  a  citizen  of  some  other  particular 
State,  forfeited  all  the  rights  of  a  citizen  in  each  and  all  of  the 
States.  There  was  no  one  right  which  the  citizen  could  exercise, 
and  no  one  duty  which  he  could  be  called  on  to  perform,  except 
as  a  citizen  of  some  particular  State.  In  that  character  alone 
could  he  own  real  estate,  vote  at  elections,  sue  or  be  sued ;  and 
in  that  character  alone  could  he  be  called  on  to  bear  arms,  or 
to  pay  taxes. 

What,  then,  was  this  citizenship  of  the  United  States,  which 
*involved  no  allegiance,  conferred  no  right  and  subjected 
-I  to  no  duty?  Who  were  "the  people  of  the  United 
States?"  Where  was  their  domicil,  and  what  were  the  politi- 
cal relations,  which  they  bore  to  one  another  ?  What  was  their 
sovereignty,  and  what  was  the  nature  of  the  allegiance  which  it 
claimed?  Whenever  these  questions  shall  be  satisfactorily 
answered  without  designating  the  people  of  the  several  States, 
distinctively  as  such,  I  shall  feel  myself  in  posession  of  new  and 
unexpected  lights  upon  the  subject. 

Even,  however,  if  we  concede  that  there  was  such  a  people  as 
"the  people  of  the  United  States,"  our  author's  position  is  still 
untenable.  I  admit  that  the  people  of  any  country  may,  if  they 
choose,  alter,  amend  or  abrogate  their  form  of  government,  or 
establish  a  new  one,  without  invoking  the  aid  of  their  constituted 
authorities.  They  may  do  this,  simply  because  they  have  the 
physical  power  to  do  it,  and  not  because  such  a  proceeding 
would  be  either  wise,  just,  or  expedient.  It  would  be  revolution 
in  the  strictest  sense  of  the  term.  Be  this  as  it  may,  no  one 
ever  supposed  that  this  course  was  pursued  in  the  case  under 
consideration.  Every  measure,  both  for  the  calling  of  the  con- 
vention and  for  the  ratification  of  the  constitution,  was  adopted 


OUR   FEDERAL   GOVERNMENT.  57 

in  strict  conformity  with  the  recommendations,  resolutions  and 
laws  of  congress  and  the  State  legislatures.  And  as  "the  people 
of  the  United  States"  did  not,  in  point  of  fact,  take  the  subject 
into  their  own  hands,  independent  of  the  constituted  authorities, 
they  could  not  do  it  by  any  agency  of  those  authorities.  So 
far  as  the  federal  government  was  concerned,  the  articles  of 
confederation,  from  which  alone  it  derived  its  power,  contained 
no  provision  by  which  "the  people  of  the  United  States"  could 
express  authoritatively  a  joint  and  common  purpose  to  change 
their  government.  A  law  of  congress  authorizing  them  to  do 
so  would  have  been  void,  for  want  of  right  in  that  body  to  pass 
it.  No  mode,  which  congress  might  have  prescribed  for  ascer- 
taining the  will  of  the  people  upon  the  subject,  could  have  had 
that  sanction  of  legal  authority,  which  would  have  been  abso- 
lutely necessary  to  give  it  force  and  effect.  _  It  is  equally  clear 
that  there  was  no  right  or  power  reserved  to  the  States  them- 
selves, by  virtue  of  which  any  such  authoritative  expression  of 
the  common  will  and  purpose  of  the  people  of  all  the  States 
could  have  been  made.  The  power  and  jurisdiction  of  each 
state  were  limited  to  its  own  territory ;  it  had  no  power  to 
legislate  for  the  people  of  any  other  State.  No  single  State, 
therefore,  could  have  effected  such  an  object ;  and  if  they  had 
all  concurred  in  it,  each  acting,  as  it  was  only  authorized  to  act, 
for  itself,  that  would  have  been  strictly  the  action  of  the  States 
as  such.,  and  as  *contradistinguished  from  the  action  of 
the  mass  of  the  people  of  all  the  States.  If  "the  people  L 
of  the  United  States"  could  not,  by  any  aid  to  be  derived  from 
their  common  government,  have  effected  such  a  change  in  their 
constitution,  that  government  itself  was  equally  destitute  of  all 
power  to  do  so.  The  only  clause  in  the  articles  of  confedera- 
tion, touching  this  subject,  is  in  the  following  words:  "And  the 
articles  of  this  confederation  shall  be  inviolably  observed  by 
every  State,  and  the  union  shall  be  perpetual ;  nor  shall  any 
alteration,  at  any  time  hereafter,  be  made  in  any  of  them,  un- 
less such  alteration  be  agreed  to  in  congress  of  the  United 
States,  and  be  afterwards  confirmed  by  the  legislature  of  every 
State"  Even  if  this  power  had  been  given  to  congress  alone, 
without  subjecting  the  exercise  of  it  to  the  negative  of  the  States, 
it  would  still  have  been  the  power  of  the  States  in  their  separate 


£g  TRUE  NATURE  AND  CHARACTER  OF 

and  independent  capacities,  and  not  the  power  of  the  people  of 
the  United  States,  as  contradistinguished  from  them.  For  con- 
gress was,  as  we  have  already  remarked,  strictly  the  representa- 
tive of  the  States ;  and  each  State,  being  entitled  to  one  vote, 
and  one  only,  was  precisely  equal,  in  the  deliberations  of  that 
body,  to  each  other  State.  Nothing  less,  therefore,  than  a  ma- 
joritii  of  the  States,  could  have  carried  the  measure  in  question, 
even  in  congress.  But,  surely  there  can  be  no  doubt  that  the 
power  to  change  their  common  government  was  reserved  to  the 
States  alone,  when  we  see  it  expressly  provided  that  nothing 
less  than  their  unanimous  consent,  as  States,  should  be  sufficient 
to  effect  that  object. 

There  is  yet  another  view  of  this  subject.  It  results  from  .the 
nature  of  all  government,  freely  and  voluntarily  established, 
that  there  is  no  powe.r  to  change,  except  the  power  which  formed 
it.  It  will  scarcely  be  denied  by  any  one,  that  the  confedera- 
tion was  a  government  strictly  of  the  States,  formed  by  them 
as  such,  and  deriving  all  its  powers  from  their  consent  and 
agreement.  What  authority  was  there,  superior  to  the  States, 
which  could  undo  their  work  ?  What  power  was  there,  other 
than  that  of  the  States  themselves,  which  was  authorized  to 
declare  that  their  solemn  league  and  agreement  should  be  abro- 
gated ?  Could  a  majority  of  the  people  of  all  the  States  have 
done  it  ?  If  so,  whence  did  they  derive  that  right  ?  Certainly 
not  from  any  agreement  among  the  States,  or  the  people  of  all 
the  States ;  and  it  could  not  be  legitimately  derived  from  any 
other  source.  If,  therefore,  they  had  exercised  such  a  power, 
it  would  have  been  a  plain  act  of  usurpation  and  violence.  Be- 
sides, if  we  may  judge  from  the  apportionment  of  representation 
as  proposed  in  the  convention,  a  majority  of  the  people  of  all 
the  States  were  to  be  found  in  the  four  *States  of  Mas- 
-I  sachusetts,  New  York,  Pennsylvania  and  Virginia  ;  so, 
that,  upon  this  idea,  the  people  of  less  than  one-third  of  all  the 
States  could  change  the  articles  of  confederation,  although 
those  articles  expressly  provided  that  they  should  not  be  changed 
without  the  consent  of  all  the  States!  There  was,  then,  no 
power  superior  to  the  power  of  the  States ;  and,  consequently, 
there  was  no  power  which  could  alter  or  abolish  the  government 
which  they  had  established.  If  the  Constitution  has  superseded 


OUR   FEDEKAL   GOVERNMENT.  59 

the  articles  of  confederation,  it  is  because  the  parties  to  those 
articles  have  agreed  that  it  should  be  so.  If  they  have  not  so 
agreed,  there  is  no  such  Constitution,  and  the  articles  of  con- 
federation are  still  the  only  political  tie  among  the  States.  We 
need  not,  however,  look  beyond  the  attestation  of  the  Constitu- 
tion itself,  for  full  evidence  upon  this  point.  It  professes  to 
have  been  "done  by  the  unanimous  consent  of  the  States  pre- 
sent, &c.,"  and  not  in  the  name  or  by  the  authority  of  "the 
people  of  the  United  States." 

But  it  is  not  the  mere  framing  of  a  constitution  which  gives 
it  authority  as  such.  It  becomes  obligatory  only  by  its  adop- 
tion and  ratification ;  and  surely  that  act,  I  speak  of  free  and 
voluntary  government,  makes  it  the  constitution  of  those  only 
who  do  adopt  it.  Let  us  ascertain  then,  from  the  authentic 
history  of  the  times,  by  whom  our  own  constitution  was  adopted 
and  ratified. 

The  resolution  of  congress  already  quoted,  contemplates  a 
convention  "for  the  sole  and  express  purpose  of  revising  the 
articles  of  confederation,"  and  reporting  suitable  "alterations 
and  provisions  therein."  The  proceedings  of  the  convention 
were  to  be  reported  to  congress  and  the  several  legislatures,  and 
were  to  become  obligatory,  only  when  "  agreed  to  in  congress 
and  confirmed  by  the  States."  This  is  precisely  the  course  of 
proceeding  prescribed  in  the  articles  of  confederation.  Accord- 
ingly, the  new  constitution  was  submitted  to  congress ;  was  by 
them  approved  and  agreed  to,  and  was  afterwards,  in  pursuance 
of  the  recommendation  of  the  convention,  laid  before  conven- 
tions of  the  several  States,  and  by  them  ratified  and  adopted. 
In  this  proceeding,  each  State  acted  for  itself,  without  reference 
to  any  other  State.  They  ratified  at  different  periods ;  some  of 
them  unconditionally,  and  others  with  provisoes  and  propositions 
for  amendment.  This  was  certainly  State  action,  in  as  distinct 
a  form  as  can  well  be  imagined.  Indeed,  it  may  well  be  doubted 
whether  any  other  form  of  ratification,  than  by  the  States 
themselves  would  have  been  valid.  At  all  events,  none  other 
was  contemplated,  since  the  Constitution  itself  provides,  that  it 
shall  become  obligatory, when  ratified  by  "nine  States, "between 
the  States  ratifying  the  same.  "  The  *people  of  the  r-  .^  -, 
United  States,"  as  an  aggregate  mass,  are  no  where  ap- 


gg  TRUE  NATURE  AND  CHARACTER  OF 

pealed  to,  for  authority  and  sanction  to  that  instrument.  Even 
if  they  could  have  made  it  their  constitution,  by  adopting  it, 
they  could  not,  heing  as  they  were  separate  and  distinct  politi- 
cal communities,  have  united  themselves  into  one  mass  for  that 
purpose,  without  previously  overthrowing  their  own  municipal 
governments ;  and,  even  then,  the  new  constitution  would  have 
been  obligatory  only  on  those  who  agreed  to  and  adopted  it, 
and  not  on  the  rest. 

The  distinction  between  the  people  of  the  several  States  and 
the  people  of  the  United  States,  as  it  is  to  be  understood  in 
reference  to  the  present  subject,  is  perfectly  plain.  I  have 
already  explained  the  terms  "  a  people,"  when  used  in  a  politi- 
cal sense.  The  distinction  of  which  I  speak  may  be  illustrated 
by  a  single  example.  If  the  Constitution  had  been  made  by 
"the  people  of  the  United  States,"  a  certain  portion  of  those 
people  would  have  had  authority  to  adopt  it.  In  the  absence 
of  all  express  provision  to  the  contrary,  we  may  concede  that  a 
majority  would,  prima  facie,  have  had  that  right.  Did  that 
majority,  in  fact,  adopt  it  ?  Was  it  ever  ascertained  whether  a 
majority  of  the  whole  people  were  in  favor  of  it  or  not  ?  Was 
there  any  provision,  either  of  law  or  constitution,  by  which  it 
was  possible  to  ascertain  that  fact  ?  It  is  perfectly  well  known 
that  there  was  no  such  provision ;  that  no  suc6  majority  was 
ever  ascertained,  or  even  contemplated.  Let  us  suppose  that 
the  people  of  the  States  of  Massachusetts,  New  York,  Penn- 
sylvania and  Virginia,  containing,  as  we  have  seen  they  proba- 
bly did,  a  majority  of  the  whole  people,  had  been  unanimous 
against  the  Constitution,  and  that  a  bare  majority  of  the  peo- 
ple in  each  of  the  other  nine  States,  acting  in  their  separate 
character  as  States,  had  adopted  and  ratified  it.  There  can  be 
no  doubt,  that  it  would  have  become  the  constitution  of  the 
United  States;  and  that,  too,, by  the  suffrages  of  a  decided 
minority,  probably  not  exceeding  one-fourth  of  the  aggregate 
people  of  all  the  States.  This  single  example  shows,  conclu- 
sively, that  the  people  of  the  United  States,  as  contradistin- 
guished from  the  people  of  the  several  States,  had  nothing  to 
do,  and  could  not  have  had  any  thing  to  do  with  the  matter. 

This  brief  history  of  the  formation  and  adoption  of  the  Con- 
stitution, which  is  familiar  to  the  mind  of  every  one  who  has 


OUR  FEDERAL   GOVERNMENT.  QQ 

attended  to  the  subject  at  all,  ought,  as  it  seems  to  me,  to  be 
perfectly  satisfactory  and  conclusive ;  and  should  silence  for 
ever,  all  those  arguments  in  favor  of  consolidation,  which  are 
founded  on  the  preamble  to  that  instrument.  I  do  not  perceive 
with  what  propriety  *it  can  be  said,  that  the  "people  of  r*f>-i  -i 
the  United  States,"  formed  the  Constitution,  since  they 
neither  appointed  the  convention,  nor  ratified  their  act,  nor 
otherwise  adopted  it  as  obligatory  upon  them.  Even  if  the  pre- 
amble be  entitled  to  all  the  influence  which  has  been  allowed  to 
it,  our  author's  construction  of  its  language  is  not,  as  has  already 
been  remarked,  the  only  one  of  which  it  is  susceptible.  "We, 
the  people  of  the  United  States,"  may,  without  any  violence  to 
the  rules  of  fair  construction,  mean  "  we,  the  people  of  the 
States  united."  In  this  acceptation,  its  terms  conform  to  the 
history  of  the  preamble  itself,  to  that  of  the  whole  Constitution, 
and  those  who  made  it.  In  any  other  acceptation,  they  are 
either  without  meaning,  or  else  they  afiirm  what  history  proves 
to  be  false. 

It  would  not,  perhaps,  have  been  deemed  necessary  to  bestow 
quite  so  much  attention  on  this  part  of  the  work,  if  it  were  not 
evident  that  the  author  himself  considered  it  of  great  con- 
sequence, not  as  matter  of  history,  but  as  warranting  and 
controlling  his  construction  of  the  Constitution,  in  some  of  its 
most  important  provisions.  The  argument  is  not  yet  exhausted, 
and  I  am  aware  that  much  of  what  I  have  said  is  trite,  and  that 
little,  perhaps  no  part  of  it,  is  new.  Indeed,  the  subject  has 
been  so  often  and  so  ably  discussed,  particularly  in  parliamen- 
tary debates,  that  it  admits  very  few  new  views,  and  still  fewer 
new  arguments  in  support  of  old  views.  It  is  still,  however,  an 
open  question,  and  there  is  nothing  in  the  present  condition  of 
public  opinion,  to  deprive  it  of  any  portion  of  its  original  im- 
portance. The  idea  that  the  people  of  these  States  were,  while 
colonists,  and,  consequently,  are  now,  "one  people,"  in  some 
sense  which  has  never  been  explained,  and  to  some  extent  which 
has  never  been  defined,  is  constantly  inculcated  by  those  who 
are  anxious  to  consolidate  all  the  powers  of  the  States  in  the 
federal  government.  It  is  remarkable,  however,  that  scarcely 
one  systematic  argument,  and  very  few  attempts  of  any  sort, 
have  yet  been  made  to  prove  this  important  position.  Even  the 


6^  TRUE  NATURE  AND  CHARACTER  OF 

vast  and  clear  mind  of  the  late  chief  justice  of  the  United  States, 
which  never  failed  to  disembarrass  and  elucidate  the  most  ob- 
scure and  intricate  subject,  appears  to  have  shrunk  from  this. 
In  all  his  judicial  opinions  in  which  the  question  has  been  pre- 
sented, the  unity  or  identity  of  the  people  of  the  United  States 
has  been  taken  as  a  postulatum,  without  one  serious  attempt  to 
prove  it.  The  continued  repetition  of  this  idea,  and  the  bold- 
ness with  which  it  is  advanced,  have,  I  am  induced  to  think, 
given  it  an  undue  credit  with  the  public.  Few  men,  far  too  few, 
enquire  narrowly  into  the  subject,  and  even  those  who  do,  are 
not  in  general  sceptical  enough  to  doubt  *what  is  so 
L  J  often  and  so  peremptorily  asserted ;  and  asserted,  too, 
with  that  sort  of  hardy  confidence  which  seems  to  say,  that  all 
argument  to  prove  it  true  would  be  supererogatory  and  useless. 
It  is  not,  therefore,  out  of  place,  nor  out  of  time,  to  refresh  the 
memory  of  the  reader,  in  regard  to  those  well  established  his- 
torical facts,  which  are  sufficient  in  themselves,  to  prove  that 
the  foundation  on  which  the  consolidationists  build  their  theory 
is  unsubstantial  and  fallacious. 

I  would  not  be  understood  as  contending,  in  what  I  have 
already  said,  that  the  Constitution  is  necessarily  federative, 
merely  because  it  was  made  by  the  States  as  such,  and  not  by 
the  aggregate  people  of  the  United  States.  I  readily  admit, 
that  although  the  previous  system  was  strictly  federative,  and 
could  not  have  been  changed  except  by  the  States  who  made  it, 
yet  there  was  nothing  to  prevent  the  States  from  surrendering, 
in  the  provisions  of  the  new  system  which  they  adopted,  all  their 
power,  and  even  their  separate  existence,  if  they  chose  to  do 
so.  The  true  enquiry  is,  therefore,  whether  they  have  in  fact 
done  so,  or  not ;  or,  in  other  words,  what  is  the  true  character, 
in  this  respect,  of  the  present  Constitution.  In  this  enquiry, 
the  history  of  their  previous  condition,  and  of  the  Constitution 
itself,  is  highly  influential  and  important. 

The  author,  carrying  out  the  idea  of  a  unity  between  the 
people  of  the  United  States,  which,  in  the  previous  part  of  his 
work,  he  had  treated  as  a  postulatum,  very  naturally,  and  in- 
deed necessarily,  concludes  that  the  Constitution  is  not  a  com- 
pact among  sovereign  States.  He  contends  that  it  is  "not  a 
contract  imposing  mutual  obligations,  and  contemplating  the 


OUR  FEDERAL   GOVERNMENT.  62 

permanent  subsistence  of  parties  having  an  independent  right 
to  construe,  control  and  judge  of  its  obligations.  If  in  this  latter 
sense,  it  is  to  be  deemed  a  compact,  it  must  be,  either  because 
it  contains,  on  its  face,  stipulations  to  that  effect,  or  because  it 
is  necessarily  implied,  from  the  nature  and  objects  of  a  frame 
of  government." 

There  is  a  want  of  appositeness  and  accuracy  in  the  first  sen- 
tence of  this  extract,  which  renders  it  somewhat  difficult  to 
determine  whether  the  author  designed  it  as  a  single  proposition, 
or  as  a  series  of  independent  propositions.  If  the  first,  there  is 
not  one  person  in  the  United  States,  it  is  presumed,  who  would 
venture  to  differ  from  him.  I  confess,  however,  that  I  do  not 
very  clearly  discern  what  bearing  it  has  on  the  question  he  was 
examining.  It  involves  no  point  of  difference  between  political 
parties,  nor  does  it  propound  any  question  which  has  heretofore 
been  contested,  or  which  may  be  expected  to  arise  hereafter, 
touching  the  true  nature  of  the  Constitution.  If  he  *de- 
signed  a  series  of  propositions,  then  the  two  first  are  so  '- 
obviously  false,  that  the  author  himself  would  not  venture  to 
maintain  them,  and  the  last  is  so  obviously  true,  that  no  one 
would  dream  of  denying  it.  For  example.  He  can  scarcely 
mean  to  say  that  our  government  is  not  a  "contract,"  whether 
made  by  the  States  as  such,  or  by  "  the  people  of  the  United 
States ;"  and  it  is  perfectly  clear  that  it  "contemplates  the  per- 
manent subsistence  of  the  parties  to  it,"  whoever  those  parties 
may  be.  These  two  propositions,  therefore,  taken  distinctly, 
are  not  true  in  themselves,  and  neither  of  them  was  necessary, 
as  qualifying  or  forming  a  part  of  the  third.  And,  as  to  the 
third,  it  is  not  easy  to  see  why  he  announced  it,  since  it  never 
entered  into  the  conception  of  any  one,  that  the  parties  to  the 
Constitution  had  "an  independent  right,"  as  a  general  right, 
"to  construe,  control  or  judge  of  its  obligations."  We  all  admit 
that  the  power  and  authority  of  the  federal  government,  within 
its  constitutional  sphere,  are  superior  to  those  of  the  States,  in 
some  instances,  and  co-ordinate  in  others,  and  that  every  citizen 
is  under  an  absolute  obligation  to  render  them  respect  and 
obedience ;  and  this  simply  because  his  own  State,  by  the  act  of 
ratifying  the  Constitution,  has  commanded  him  to  do  so.  We 
all  admit  it  to  be  true,  as  a  general  proposition,  that  no  citizen 


gg          TRUE  NATURE  AND  CHARACTER  OF 

nor  State  has  an  independent  right  to  "construe,"  and  still  less 
to  "control,"  the  constitutional  obligations  of  that  government, 
and  that  neither  a  citizen  nor  a  State  can  "judge,"  that  is,  de- 
cide, on  the  nature  and  extent  of  those  obligations,  with  a  view 
to  control  them.  All  that  has  ever  been  contended  for  is,  that 
a  State  has  a  right  to  judge  of  its  own  obligations,  and,  con- 
sequently, to  judge  of  those  of  the  federal  government,  so  far  as 
they  relate  to  such  State  itself,  and  no  farther.  It  is  admitted 
on  all  hands,  that  when  the  federal  government  transcends  its 
constitutional  power,  and  when,  of  course,  it  is  not  acting  within 
its  "obligations,"  the  parties  to  that  government,  whoever  they 
may  be,  are  no  longer  under  any  duty  to  respect  or  obey  it. 
This  has  been  repeatedly  affirmed  by  our  courts,  both  State  and 
federal,  and  has  never  been  denied  by  any  class  of  politicians. 
Who  then  is  to  determine,  whether  it  has  so  transcended  its 
constitutional  obligations  or  not  ?  It  is  admitted  that  to  a  cer- 
tain extent  the  supreme  court  is  the  proper  tribunal  in  the  last 
resort,  because  the  States,  in  establishing  that  tribunal,  have 
expressly  agreed  to  make  it  so.  The  jurisdiction  of  the  federal 
courts  extends  to  certain  cases,  affecting  the  rights  of  the  in- 
dividual citizens,  and  to  certain  others  affecting  those  of  the 
individual  States.  So  far  as  the  federal  government  is  authorized 
to  act  on  the  individual  citizen,  the  powers  of  the  one  and  the 
rights  of  *the  other,  are  properly  determinable  by  the 
-I  federal  courts.  And  the  decision  is  binding  too,  and 
absolutely  final,  so  far  as  the  relation  of  the  citizen  to  the  fede- 
ral government  is  concerned.  There  is  not,  within  that  system, 
any  tribunal  of  appeal,  from  the  decisions  of  the  supreme  court. 
And  so  also  of  those  cases  in  which  the  rights  of  the  /States  are 
referred  to  the  federal  tribunals.  In  this  sense,  and  to  this  ex- 
tent, it  is  strictly  true  that  the  parties  have  not  "  an  indepen- 
dent right  to  construe,  control  and  judge,  of  the  obligations"  of 
the  federal  government,  but  they  are  bound  by  the  decisions  of 
the  federal  courts,  so  far  as  they  have  authorized  and  agreed  to 
submit  to  them.  But  there  are  many  cases  involving  the  ques- 
tion of  federal  power  which  are  not  cognizable  before  the  federal 
courts ;  and,  of  course,  as  to  these,  we  must  look  out  for  some 
other  umpire.  It  is  precisely  in  this  case  that  the  question,  who 
are  the  parties  to  the  constitution,  becomes  all  important  and 


OUR  FEDERAL   GOVERNMENT.  64 

controlling.  If  the  States  are  parties  as  sovereign  States,  then 
it  follows,  as  a  necessary  consequence,  that  each  of  them  has 
the  right  \vhich  belongs  to  every  sovereignty,  to  construe  its 
own  contracts  and  agreements,  and  to  decide  upon  its  own  rights 
and  powers.  I  shall  take  occasion,  in  a  subsequent  part  of  this 
review,  to  enter  more  fully  into  the  question,  who  is  the  com- 
mon umpire.  The  statement  here  given,  of  the  leading  point 
of  difference  between  the  great  political  parties  of  the  country, 
is  designed  only  to  show  that  the  author's  proposition  does  not 
involve  it.  That  proposition  may  mislead  the  judgment  of  the 
reader,  but  cannot  possibly  enlighten  it,  in  regard  to  the  true 
nature  of  the  Constitution. 

He  has  been  scarcely  less  unfortunate  in  the  next  proposition. 
Taking  his  words  in  their  most  enlarged  sense,  he  is  probably 
correct  in  his  idea,  though  he  is  not  accurate  in  his  language ; 
but  in  the  sense  in  which  his  own  reasoning  shows  that  he  him- 
self understands  them,  his  proposition  is  wholly  untenable.  If, 
by  the  words  "stipulations  to  that  effect,"  he  means  simply  that 
the  effect  must  necessarily  result  from  the  provisions  of  the 
Constitution,  he  has  merely  asserted  a  truism  which  no  one  will 
dispute  with  him.  Certainly,  if  it  does  not  result  from  the  na- 
ture of  all  government,  that  it  is  a  compact,  and  if  there  be 
nothing  in  our  Constitution  to  show  that  it  is  so,  then  it  is  not 
a  compact.  His  own  reasoning,  however,  shows  that  he  means 
by  the  word  "stipulations,"  something  in  the  nature  of  express 
agreement  or  declaration ;  and,  in  that  sense,  the  proposition  is 
obviously  untrue,  and  altogether  defective  as  a  statement  for 
argument.  It  is  very  possible  that  our  Constitution  may  be  a 
compact,  even  though  it  contain  no  express  agreement  or  de- 
claration so  denominating  it,  and  *though  it  may  not 
"result  from  the  nature  and  objects  of  a  frame  of  govern-  *- 
ment,"  that  it  is  so;  and  this  simply  because  it  may  "result 
from  the  nature  and  objects  of  our  government"  that  it  is  a 
compact,  whether  such  be  the  result  of  other  governments  or 
not.  If  the  author  designed  to  take  this  view  of  the  subject, 
the  examination  which  he  has  given  of  the  Constitution,  in  re- 
ference to  it,  is  scarcely  as  extended  and  philosophical  as  we 
had  a  right  to  expect  from  him.  He  has  not  even  alluded  to 
the  frame  and  structure  of  the  government  in  its  several  depart- 


65  TRUE  NATURE  AND  CHARACTER  OF 

ments,  nor  presented  any  such  analysis  of  it  in  any  respect,  as 
to  enable  the  reader  to  form  any  satisfactory  conclusion  as  to 
its  true  character  in  the  particular  under  consideration.  Every 
thing  which  he  has  urged  as  argument  to  prove  his  proposition, 
may  well  be  true,  and  every  sentence  of  the  Constitution,  which 
he  has  cited  for  that  purpose,  may  be  allowed  its  full  effect,  and 
yet  our  government  may  be  a  compact,  even  in  the  strictest 
sense  in  which  he  has  understood  the  term. 

His  first  argument  is,  that  the  "United  States  were  no 
strangers  to  compacts  of  this  nature,"  and  that  those  who 
ratified  the  Constitution,  if  they  had  meant  it  as  a  compact, 
would  have  used  "appropriate  terms"  to  convey  that  idea.  I 
have  already  shown  that  if  he  means  by  this,  that  the  Consti- 
tution would  have  contained  some  express  declaration  to  that 
effect,  he  is  altogether  inaccurate.  He  himself  knows,  as  a 
judge,  that  a  deed,  or  other  instrument,  receives  its  distinctive 
character,  not  from  the  name  which  the  parties  may  choose  to 
give  to  it,  but  from  its  legal  effect  and  operation.  The  same 
rule  applies  to  constitutions.  Ours  is  a  compact  or  not,  precisely 
as  its  provisions  make  it  so,  or  otherwise.  The  question,  who 
are  the  parties  to  it,  may  influence,  and  ought  to  influence,  the 
construction  of  it  in  this  respect ;  and  I  propose  presently  to 
show,  from  this  and  other  views  of  it,  that  it  is,  in  its  nature, 
"  a  mere  confederation,"  and  not  a  consolidated  government,  in 
any  one  respect.  It  does,  therefore,  contain  "appropriate 
terms,"  if  we  take  those  words  in  an  enlarged  sense,  to  convey 
the  idea  of  a  compact. 

Our  author  supposes,  however,  that  a  "  conclusive"  argument 
upon  this  subject  is  furnished  by  that  clause  of  the  Constitution 
which  declares  that  "  This  Constitution,  and  the  laws  of  the 
United  States,  which  shall  be  made  in  pursuance  thereof,  and 
all  treaties  made,  or  which  shall  be  made,  under  the  authority 
of  the  United  States,  shall  be  the  supreme  law  of  the  land ;  and 
the  judges  in  every  State,  shall  be  bound  thereby,  any  thing  in 
the  constitution  or  laws  of  any  State  to  the  contrary  notwith- 
F*fifi1  stanc^ng'"  Hence  he  concludes  that  "the  *people  of 
any  State  cannot,  by  any  form  of  its  own  constitution 
or  laws,  or  other  proceedings,  repeal,  or  abrogate  or  suspend  it." 

Here  again  the  author  displays  a  want  of  proper  definiteness 


OUR   FEDERAL   GOVERNMENT.  66 

and  precision,  in  the  statement  of  his  proposition.  The  people 
who  make  a  law,  can,  upon  the  principles  of  all  our  institutions, 
either  "repeal  or  abrogate  or  suspend  it;"  and  if,  as  he  sup- 
poses, our  constitution  was  made  by  "the  people  of  the  United 
States,"  in  the  aggregate,  then  "the  people  of  any  State,"  or 
of  half  a  State,  may  repeal,  or  abrogate,  or  suspend  it,  if  they 
happen  to  be  a  majority  of  the  whole.  The  argument,  there- 
fore, if  we  are  to  take  it  in  the  full  latitude  in  which  it  is  laid 
down,  is  not  sound,  upon  the  author's  own  principles ;  and  it  can 
avail  nothing,  except  upon  the  very  supposition  which  he  dis- 
allows; to  wit,  that  the  Constitution  was  formed  by  the  States, 
and  not  by  the  people  of  the  United  States.  Even  in  this 
acceptation,  however,  I  am  at  a  loss  to  perceive  how  it  establishes 
the  proposition  with  which  he  set  out ;  to  wit,  that  the  Consti- 
tution is  not  a  compact.  Certainly  it  is  very  possible  so  to 
frame  a  compact,  that  no  party  to  it  shall  have  a  right  either 
to  "repeal  or  abrogate  or  suspend  it;"  and  if  it  be  possible  to 
do  so,  then  the  mere  absence  of  such  right  does  not  even  tend 
to  disprove  the  existence  of  compact.  Our  own  Constitution, 
even  in  the  opinion  of  those  who  are  supposed  by  the  author  to 
be  least  friendly  to  it,  is  a  compact  of  precisely  this  nature. 
The  Nullifier  contends  only  for  the  right  of  a  State  if)  prevent  the 
Constitution  from  being  violated  by  the  general  government,  and 
not  for  the  right  either  to  repeal,  abrogate  or  suspend  it.  The 
Seceder  asserts  only  that  a  State  is  competent  to  withdraw  from 
the  Union  whenever  it  pleases ;  but  does  not  assert  that  in  so 
doing  it  can  repeal,  or  abrogate  or  suspend  the  Constitution,  as 
to  the  other  States.  Secession  would,  indeed,  utterly  destroy 
the  compact  as  to  the  seceding  party  ;  but  would  not  necessarily 
affect  its  obligation  as  to  the  rest.  If  it  would,  then  the  rest 
would  have  no  right  to  coerce  the  seceding  State,  nor  to  place 
her  in  the  attitude  of  an  enemy.  It  is  certain,  I  think,  they 
would  not  have  such  right;  but  those  who  assert  that  they 
would — and  the  author  is  among  the  number — must  either 
abandon  that  idea,  or  they  must  admit  that  the  act  of  secession 
does  not  break  up  the  Constitution,  except  as  to  the  seceding 
State.  For  the  moment  the  Constitution  is  destroyed,  all  the 
authorities  which  it  has  established  cease  to  exist.  There  is  no 
longer  such  a  government  as  that  of  the  United  States,  and,  of 


QQ  TRUE  NATURE  AND  CHARACTER  OF 

course,  they  cannot,  as  such,  either  make  any  demand,  or  assert 
any  right,  or  enforce  any  claim. 

The  conclusion,  however,  to  which  our  author  has  arrived, 
upon  *this  point,  is  not  that  to  which  he  originally 
L  -I  designed  that  his  premises  should  conduct  him.  The 
question  of  the  right  of  a  party  to  a  compact,  to  repeal  or 
abrogate  or  suspend  it,  does  not  enter  into  his  original  propo- 
sition, nor  result  from  the  argument  which  he  had  immediately 
before  used  to  sustain  it.  The  proposition  is,  that  our  Consti- 
tution is  not  a  compact,  and  the  argument  is,  that  it  is  not  a 
compact,  because  it  is  a  supreme  law.  The  same  idea  is  sub- 
stantially reaffirmed,  in  the  next  argument  by  which  he  pro- 
poses to  prove  the  main  proposition.  "  The  design"  (of  the 
Constitution)  "is  to  establish  a  government.  This,  of  itself, 
imports  legal  obligation,  permanence,  and  uncontrollability  by 
any,  but  the  authorities  authorized  to  alter  or  abolish  it." 

Admitting,  as  I  cheerfully  do,  that  all  this  is  strictly  true,  I 
am  yet  unable  to  perceive  how  it  demonstrates  that  our  Con- 
stitution is  not  a  compact.  May  not  a  compact  between  sov- 
ereign States,  be  a  government  ?  Is  there  any  such  necessary 
restraint  upon,  or  incident  of,  sovereign  power,  that  it  cannot, 
in  any  possible  exercise  of  it,  produce  such  a  result  ?  If  there 
is,  then  it  was  incumbent  on  the  author  to  show  it,  because,  if 
there  is  not,  his  argument  is  of  no  force ;  and  he  himself  will 
admit,  that  the  proposition,  to  say  the  least  of  it,  is  not  quite 
clear  enough  to  be  taken  as  a  postulate.  His  own  historical 
information,  if  he  had  drawn  on  its  ample  funds,  must  have 
furnished  him  with  numerous  instances  of  governments  esta- 
blished by  compact.  He  need,  not,  however,  have  gone  beyond 
our  own  Confederation,  which,  although  a  compact  among  sov- 
ereign States,  in  the  strictest  sense,  was  yet  treated  as  a  govern- 
ment by  the  people  at  home,  and  recognized  as  such  by 
all  foreign  powers.  It  was  also  "supreme,"  within  its  pre- 
scribed sphere  of  action ;  its  rights  and  powers  over  the  most 
important  subjects  of  general  concern  were  not  only  superior 
to  those  of  the  States,  but  were  exclusive.  The  author's  pro- 
position and  argument,  reduced  to  their  simple  terms,  may  be 
thus  stated.  "  Our  Constitution  is  not  a  compact,  because  it  is 
a  government,  and  because  that  government  is  the  supreme  law." 


OUR  FEDERAL  GOVERNMENT.  67 

There  are  few  minds,  I  think,  prepared  to  embrace  this  conclu- 
sion, or  to  discern  the  connection  which  it  has  with  the  pre- 
mises. There  are  still  fewer  who  will  not  feel  surprise,  that  our 
author  should  have  formed  such  a  conclusion,  since  an  instance 
to  disprove  it,  furnished  by  the  history  of  his  own  country,  and 
existing  in  his  own  times,  had  but  just  passed  under  his  critical 
examination  and  review. 

The  remaining  arguments  upon  this  point  are  merely  infer- 
ences drawn  from  the  absence  of  express  words  in  the  Consti- 
tution, or  from  *the  opinions  of  members  of  the  various 

I       Oo      i 

conventions,  expressed  in  the  debates  concerning  it.  L 
These  have  already  been  sufficiently  examined.  Taking  his 
whole  chapter  upon  this  subject  together,  the  reader  will  pro- 
bably think  that  it  does  not  answer  the  expectations  which  the 
public  have  formed  upon  the  author's  powers  as  a  reasoner. 
His  political  opponents  will  be  apt  to  think,  also,  that  he  has 
done  something  less  than  justice  to  them,  in  the  view  which  he 
has  given  of  their  principles.  After  laboring,  in  the  way  we 
have  seen,  to  prove  that  our  Constitution  is  not  a  compact,  he 
informs  us  that  "  The  cardinal  conclusion  for  which  this  doc- 
trine of  a  compact  has  been,  with  so  much  ingenuity  and  ability, 
forced  into  the  language  of  the  Constitution,  (for  the  latter  no 
where  alludes  to  it,)  is  avowedly  to  establish  that,  in  construing 
the  Constitution,  there  is  no  common  umpire;  but  that,  each 
State,  nay,  each  department  of  the  government  of  each  State, 
is  the  supreme  judge  for  itself,  of  the  powers  and  rights  and 
duties  arising  under  that  instrument." 

The  author  must  excuse  me — I  mean  no  disrespect  to  him — 
if  I  express  my  unfeigned  astonishment  that  he  should  have 
admitted  this  passage  into  a  grave  and  deliberate  work  on  the 
Constitution.  He  must,  indeed,  have  been  a  most  careless 
observer  of  passing  events,  and  a  still  more  careless  reader  of 
the  publications  of  the  last  ten  years,  upon  this  very  point,  if 
he  has  found  either  in  the  one  or  the  other,  the  slightest  authority 
for  the  opinion  which  is  here  advanced.  The  most  ultra  of 
those  who  have  contended  for  the  rights  of  the  States  have 
asserted  no  such  doctrine  as  he  has  imputed  to  them.  Neither 
is  it  the  necessary  or  legitimate  consequence  of  any  principle 
which  they  have  avowed.  I  cannot  impute  to  an  author  of  his 


68 

acknowledged  ability,  the  weakness  of  stating  a  proposition 
merely  for  the  sake  of  the  poor  triumph  of  refuting  it.  With 
what  other  motive,  then,  did  he  make  a  statement  which  is 
unsupported,  as  matter  of  fact ;  which  involves  no  disputed  or 
doubted  question  of  constitutional  law,  and  which  attributes  to 
a  large  class  of  his  fellow-citizens  opinions  which  would  justly 
expose  them  to  the  scorn  of  all  correct  thinkers  ?  That  class 
profess  to  hold,  in  their  utmost  latitude  and  in  their  strictest 
applications,  the  doctrines  of  the  State  Rights'  school  of  poli- 
tics. They  believe  that  those  doctrines  contain  the  only  prin- 
ciple truly  conservative  of  our  Constitution  ;  that  without  them 
there  is  no  effective  check  upon  the  federal  government,  and,  of 
course,  that  that  government  can  increase  its  own  powers  to  an 
indefinite  extent ;  that  this  must  happen  in  the  natural  course 
of  events,  and  that,  ultimately,  the  whole  character  of  our 
government  will  be  so  changed,  that  even  *its  forms 

'  -I  will  be  rejected,  as  cumbrous  and  useless,  under  the 
monarchy,  in  substance,  into  which  we  shall  have  insensibly 
glided.  It  is,  therefore,  because  they  are  lovers  of  the  Con- 
stitution and  of  the  Union,  that  they  contend  strenuously  for 
the  rights  of  the  States.  They  are  no  lovers  of  anarchy  nor  of 
revolution.  Their  principles  will  cease  to  be  dear  to  them, 
whenever  they  shall  cease  to  subserve  the  purposes  of  good 
order,  and  of  regular  and  established  government.  It  is  their 
object  to  preserve  the  institutions  of  the  country  as  they  are, 
sincerely  believing  that  nothing  more  than  this  is  necessary  to 
secure  to  the  people  all  the  blessings  which  can  be  expected 
from  any  government  whatever.  They  would  consider  them- 
selves but  little  entitled  to  respect  as  a  political  party,  if  they 
maintained  the  loose,  disjointed,  and  worse  than  puerile  notions, 
which  the  author  has  not  thought  it  unbecoming  to  impute  to 
them. 

It  is  the  peculiar  misfortune  of  the  political  party  to  which  I 
have  alluded,  to  be  misunderstood  and  misrepresented  in  their 
doctrines.  The  passage  above  quoted  affords  not  the  least  strik- 
ing instance  of  this.  It  is  a  great  mistake  to  suppose  that  they 
have  ever  contended  that  the  right  of  State  interposition  was 
given  in  the  express  terms  of  the  Constitution  ;  and,  therefore, 
they  have  not  "forced  this  principle  into  the  language  of  that 


OUR   FEDERAL    GOVERNMENT.  (39 

instrument.  The  right  in  question  is  supposed  to  belong  to  the 
States,  only  because  it  is  an  incident  of  their  sovereignty,  which 
the  Constitution  has  not  taken  aivay.  The  author,  it  is  pre. 
sumed,  could  scarcely  have  failed  to  perceive  the  difference  of 
the  two  propositions,  nor  could  he  have  been  unconscious  that 
they  did  not  depend  upon  the  same  course  of  investigation  or 
reasoning.  And  it  is  not  true,  so  far  as  my  information  extends, 
that  any  political  party  has  ever  asserted,  as  a  general  propo- 
sition, that,  in  construing  the  Constitution,  there  is  no  common 
umpire.  Cases  have  already  been  stated,  in  which  the  supreme 
court  is  universally  admitted  to  be  the  common  umpire,  and 
others  will  be  stated  when  we  come  more  directly  to  that  part 
of  our  subject.  In  the  broad  sense,  then,  in  which  the  author 
lays  down  the  proposition,  it  has  never  been  contended  for  by 
any  political  party  whatever.  Neither  is  it  true,  as  he  is  pleased 
to  assert,  that  any  political  party  has  ever  supposed,  that  "each 
department  of  the  government  of  each  State"  had  a  right  to 
"judge  for  itself,  of  the  powers,  rights  and  duties,  arising  under" 
the  Constitution.  By  the  word  "judge,"  he  must  be  understood 
to  mean  decide  finally ;  and,  in  this  sense,  I  venture  to  affirm 
that  no  political  party,  nor  political  partizan,  even  in  the  wildest 
dream  of  political  phrensy,  has  ever  entertained  the  absurd  no- 
tion here  attributed  to  them.  It  is  difficult  *to  suppose 
that  the  author  could  have  been  uninformed  of  the  fact,  *•  ' 
that  nothing  short  of  the  power  of  all  the  State,  acting  through 
its  own  constituted  authorities,  has  ever  been  deemed  of  the 
least  force  in  this  matter.  The  better  and  more  prevalent  opinion 
is,  that  a  State  cannot  properly  so  act,  except  by  a  convention 
called  for  that  express  purpose.  This  was  the  course  pursued  by 
South  Carolina;  but  in  the  case  of  the  alien  and  sedition  laws,  Vir- 
ginia acted  through  her  ordinary  legislature.  As  to  this  matter, 
however,  the  legislature  was  very  properly  considered  as  repre- 
senting the  power  of  the  whole  State. 

Thus,  in  the  short  paragraph  above  quoted,  the  author  has 
fallen  into  three  most  remarkable  errors,  proving  that  he  has,  in 
the  strangest  way  imaginable,  misunderstood  the*  principles 
Avhich  he  attempted  to  explain.  The  young  and  plastic  minds 
to  which  he  addressed  himself,  with  the  professed  object  of  in- 
structing them  in  the  truths  of  constitutional  interpretation,  will 
6 


70  TRUE  NATURE  AND  CHARACTER  OF 

look  in  vain  for  the  publication  or  other  authority  which  sustains 
him.  And  the  political  party  whose  principles  he  has  endeav- 
ored to  hold  up  to  reproach,  has  a  right  to  demand  of  him,  why 
he  has  chosen  to  attribute  to  them  absurd  and  revolutionary  no- 
tions, unworthy  alike  of  their  patriotism  and  their  reason. 

It  is  submitted  to  the  reader's  judgment  to  determine  how 
far  the  reasoning  of  the  author,  which  we  have  just  examined, 
supports  his  position  that  our  Constitution  is  not  a  compact. 
The  opinion  of  that  congress  which  recommended  the  call  of  the 
convention  seems  to  have  been  very  different;  they,  at  least, 
did  not  suppose  that  a  compact  could  not  be  a  government. 
Their  resolution  recommends  the  call  of  a  convention,  for  the 
purpose  of  "revising  the  articles  of  confederation,  and  report- 
ing such  alterations  and  provisions  therein,  as  would  render  the 
federal  constitution  adequate  to  the  exigencies  of  government, 
and  the  preservation  of  the  Union."  In  the  opinion  of  congress, 
the  articles  of  confederation,  which  were  clearly  a  compact, 
were  an  inadequate  constitution,  and  therefore,  they  recom- 
mended such  alterations  and  provisions  therein,  as  would  make 
that  same  compact  an  adequate  constitution.  Nothing  is  said 
about  forming  a  new  government,  or  changing  the  essential 
character  of  the  existing  one ;  and,  in  fact,  no  such  thing  was 
contemplated  at  the  time.  "The  sole  and  exclusive  purpose" 
of  the  convention  was  so  to  amend,  or  add  to,  the  provisions  of 
the  articles  of  confederation,  as  would  form  "a  more  perfect 
union,  &c.,"  upon  the  principles  of  the  union  already  existing. 
It  is  clear,  therefore,  that,  in  the  opinion  of  congress,  and  of  all 
the  States  that  adopted  their  recommendation,  that  union  or 
compact  was  a  constitution  of  government. 
r ..._-,  -,  *It  is  worthy  of  remark,  that  of  the  States,  New 
J  Hampshire  and  the  author's  own  State  of  Massachusetts, 
expressly  call  the  Constitution  a  compact,  in  their  acts  of  rati- 
fication ;  and  no  other  State  indicates  a  different  view  of  it. 
This  tends  to  prove  that  public  opinion  at  the  time  had  not 
drawn  the  nice  distinction  which  is  now  insisted  on,  between  a 
government  and  a  compact ;  and  that  those  who  for  eight  years 
had  been  living  under  a  compact,  and  forming  treaties  with  fo- 
reign powers  by  virtue  of  its  provisions,  had  never  for  a  moment 
imagined  that  it  was  not  a  government. 


OUR  FEDERAL   GOVERNMENT.  71 

But  little  importance,  however,  ought  to  be  attached  to  rea- 
soning of  this  kind.  Those  who  contend  that  our  Constitution 
is  a  compact,  very  properly  place  their  principles  upon  much 
higher  ground.  They  say  that  the  Constitution  is  a  compact, 
because  it  was  made  by  sovereign  States,  and  because  that  is  the 
only  mode  in  which  sovereign  States  treat  with  one  another. 
The  conclusion  follows  irresistibly  from  the  premises ;  and  those 
who  would  deny  the  one,  are  bound  to  disprove  the  other.  Our 
adversaries  begin  to  reason  at  the  very  point  at  which  reasoning 
becomes  no  longer  necessary.  Instead  of  disproving  our  pre- 
mises, they  assume  that  they  are  wrong,  and  then  triumphantly 
deny  our  conclusion  also.  If  we  establish  that  the  Constitution 
was  made  by  the  States,  and  that  they  were,  at  the  time,  dis- 
tinct, independent  and  perfect  sovereignties,  it  follows  that  they 
could  not  treat  with  one  another,  even  with  a  view  to  the  forma- 
tion of  a  new  common  government,  except  in  their  several  and 
sovereign  characters.  They  must  have  maintained  the  same 
character  when  they  entered  upon  that  work,  and  throughout 
the  whole  progress  of  it.  Whatever  the  government  may  be, 
therefore,  in  its  essential  character,  whether  a  federative  or  a 
consolidative  government,  it  is  still  a  compact,  or  the  result  of 
a  compact,  because  those  who  made  it  could  not  make  it  in  any 
other  way.  In  determining  its  essential  character,  therefore, 
we  are  bound  to  regard  it  as  a  compact,  and  to  give  it  such  a 
construction  as  is  consistent  Avith  that  idea.  We  are  not  to  pre- 
sume that  the  parties  to  it  designed  to  change  the  character  in 
which  they  negotiated  with  one  another.  Every  fair  and  legiti- 
mate inference  is  otherwise.  Its  sovereignty  is  the  very  last 
thing  which  a  nation  is  willing  to  surrender;  and  nothing  short 
of  the  clearest  proof  can  warrant  us  in  concluding  that  it  has 
surrendered  it.  In  all  cases,  therefore,  where  the  language  and 
spirit  of  the  Constitution  are  doubtful,  and  even  where  their 
most  natural  construction  would  be  in  favor  of  consolidation, 
(if  there  be  any  such  case,)  we  should  still  incline  against  it,  and 
in  favor  of  the  rights  of  the  States,  unless  no  other  construction 
can  be  admitted. 

*Having  disposed  of  this  preliminary  question,  we  now  • 
approach  the  Constitution  itself.  I  affirm  that  it  is,  in  its  L  ' 
structure,  a  federative  and  not  a  consolidated  government ;  that 


r>2  TRUE  NATURE  AND  CHARACTER  OF 

it  is  so,  in  all  its  departments,  and  in  all  its  leading  and  distin- 
guishing provisions;  and,  of  course,  that  it  is  to  be  so  inter- 
preted, ty  the  force  of  its  own  terms,  apart  from  any  influence 
to  be  derived  from  that  rule  of  construction  which  has  just  been 
laid  down.  We  will  first  examine  it  in  the  structure  of  its 
several  departments. 

The  Legislature. — This  consists  of  two  houses.  The  senate 
is  composed  of  two  members  from  each  State,  chosen  by  its  own 
legislature,  whatever  be  its  size  or  population,  and  is  universally 
admitted  to  be  strictly  federative  in  its  structure.  The  house 
of  representatives  consists  of  members  chosen  in  each  State,  and 
is  regulated  in  its  numbers,  according  to  a  prescribed  ratio  of 
representation.  The  number  to  which  each  State  is  entitled  is 
proportioned  to  its  own  population,  and  not  to  the  population 
of  the  United  States ;  and  if  there  happen  to  be  a  surplus  in  any 
State  less  than  the  established  ratio,  that  surplus  is  not  added 
to  the  surplus  or  population  of  any  other  State,  in  order  to  make 
up  the  requisite  number  for  a  representative,  but  is  wholly  un- 
represented. In  the  choice  of  representatives,  each  State  votes 
by  itself,  and  for  its  own  representatives,  and  not  in  connection 
with  any  other  State,  nor  for  the  representatives  of  any  other 
State.  Each  State  prescribes  the  qualifications  of  its  own 
voters,  the  Constitution  only  providing  that  they  shall  have  the 
qualifications  which  such  State  may  have  prescribed  for  the 
voters  for  the  most  numerous  branch  of  its  own  legislature. 
And,  as  the  right  to  vote  is  prescribed  by  the  State,  the  duty 
of  doing  so  cannot  be  enforced,  except  by  the  authority  of  the  State. 
No  one  can  be  elected  to  represent  any  State,  except  a  citizen 
thereof.  Vacancies  in  the  representation  of  any  State,  are  to  be 
supplied  under  writs  of  election,  issued  by  the  executive  of  such 
State.  In  all  this,  there  is  not  one  feature  of  nationality.  The 
whole  arrangement  has  reference  to  the  States  as  such,  and  is  car- 
ried into  effect  solely  by  their  authority.  The  federal  government 
has  no  agency  in  the  choice  of  representatives,  except  only  that 
it  may  prescribe  the  "  times,  places  and  manner,  of  holding 
elections."  It  can  neither  prescribe  the  qualifications  of  the 
electors,  nor  impose  any  penalty  upon  them,  for  refusing  to 
elect.  The  States  alone  can  do  these  things;  and,  of  course, 
the  very  existence  of  the  house  of  representatives  depends,  as 


OUR  FEDERAL   GOVERNMENT.  72 

much  as  does  that  of  the  senate,  upon  the  action  of  the  States. 
A  State  may  withdraw  its  representation  altogether,  and  con- 
gress has  no  power  to  prevent  it,  nor  to  supply  the  vacancy  thus 
created.  If  the  house  of  representatives  were  national,  in  any 

practical  sense  of  the  *term,  the   "nation"  would  have 

f*73~l 
authority  to  provide  for  the  appointment  of  its  members,  L 

to  prescribe  the  qualifications  of  voters,  and  to  enforce  the 
performance  of  that  duty.  All  these  things  the  State  legisla- 
tures can  do,  within  their  respective  States,  and  it  is  obvious 
that  they  are  strictly  national.  In  order  to  make  the  house  of 
representatives  equally  so,  the  people  of  the  United  States  must 
be  so  consolidated  that  the  federal  government  may  distribute 
them,  without  regard  to  State  boundaries,  into  numbers  accord- 
ing to  the  prescribed  ratio ;  so  that  all  the  people  may  be  re- 
presented, and  no  unrepresented  surplus  be  left  in  any  State. 
If  these  things  could  be  done  under  the  Federal  Constitution, 
there  would  then  be  a  strict  analogy  between  the  popular 
branches  of  the  federal  and  State  legislatures,  and  the  former 
might,  with  propriety,  be  considered  "national."  But  it  is 
difficult  to  imagine  a  national  legislature  which  does  not  exist 
under  the  authority  of  the  nation,  and  over  the  very  appoint- 
ment of  which  the  nation,  as  such,  can  exert  no  effective 
control. 

There  are  only  two  reasons  which  I  have  ever  heard  assigned 
for  the  opinion  that  the  house  of  representatives  is  national,  and 
not  federative.  The  first  is,  that  its  measures  are  carried  by 
the  votes  of  a  majority  of  the  whole  number,  and  not  by  those 
of  a  majority  of  the  States.  It  would  be  easy  to  demonstrate 
that  this  fact  does  not  warrant  such  a  conclusion  ;  but  all  rea- 
soning is  unnecessary,  since  the  conclusion  is  disproved  by  the 
example  of  the  other  branch  of  the  federal  legislature.  The 
senate,  which  is  strictly  federative,  votes  in  the  same  way.  The 
argument,  therefore,  proves  nothing,  because  it  proves  too 
much. 

The  second  argument  is,  that  the  States  are  not  equally 
represented,  but  each  one  has  a  representation  proportioned  to 
its  population.  There  is  no  reason,  apparent  to  me,  why  a 
league  may  not  be  formed  among  independent  sovereignties, 
giving  to  each  an  influence  in  the  management  of  their  com- 


73  TRUE  NATURE  AND  CHARACTER  OF 

mon  concerns,  proportioned  to  its  strength,  its  wealth,  or  the 
interest  which  it  has  at  stake.  This  is  but  simple  justice,  and 
the  rule  ought  to  prevail  in  all  cases,  except  where  higher  con- 
siderations disallow  it.  History  abounds  with  examples  of 
such  confederations,  one  of  which  I  will  cite.  The  States 
General  of  the  United  Provinces  were  strictly  a  federal  body. 
The  council  of  state  had  almost  exclusively  the  management 
and  control  of  all  their  military  and  financial  concerns ;  and  in 
that  body,  Holland  and  some  other  provinces  had  three  votes 
each,  whilst  some  had  two,  and  others  only  one  vote  each.  Yet 
it  never  was  supposed  that  for  this  reason  the  United  Provinces 

were  a  consolidated  nation.     A  single  example  *of  this 

C*74  ~\  • 

J  sort  affords  a  full  illustration  of  the  subject,  and  renders 

all  farther  argument  superfluous. 

It  is  not,  however,  from  the  apportionment  of  its  powers,  nor 
from  the  modes  in  which  those  powers  are  exercised,  that  we 
can  determine  the  true  character  of  a  legislative  body,  in  the 
particular  now  under  consideration.  The  true  rule  of  decision 
is  found  in  the  manner  in  which  the  body  is  constituted,  and 
that,  we  have  already  seen,  is,  in  the  case  before  us,  federative, 
and  not  national. 

We  may  safely  admit,  however,  that  the  house  of  representa- 
tives is  not  federative,  and  yet  contend,  with  perfect  security, 
that  the  legislative  department  is  so.  Congress  consists  of  the 
house  of  representatives  and  senate.  Neither  is  a  complete 
legislature,  in  itself,  and  neither  can  pass  any  law  without  the 
concurrence  of  the  other.  And,  as  the  senate  is  the  peculiar 
representative  of  the  States,  no  act  of  legislation  whatever  can 
be  performed,  without  the  consent  of  the  States.  They  hold, 
therefore,  a  complete  check  and  control  over  the  powers  of  the 
people  in  this  respect,  even  admitting  that  those  powers  are 
truly  and  strictly  represented  in  the  other  branch.  It  is  true 
that  the  check  is  mutual;  but  if  the  legislative  department 
were  national,  there  would  be  no  federative  feature  in  it.  It 
cannnot  be  replied,  with  equal  propriety,  that,  if  it  were  fede- 
rative, there  would  be  no  national  feature  in  it.  The  question 
is,  whether  or  not  the  States  have  preserved  their  distinct  sove- 
reign characters,  in  this  feature  of  the  Constitution.  If  they 
have  done  so,  in  any  part  of  it,  the  whole  must  be  considered 


OUR   FEDERAL  GOVERNMENT.  74 

federative ;  because  national  legislation  implies  a  unity,  which 
is  absolutely  inconsistent  with  all  idea  of  a  confederation ; 
whereas,  there  is  nothing  to  prevent  the  members  of  a  confed- 
eration from  exerting  their  several  powers,  in  any  form  of  joint 
action  which  may  seem  to  them  proper. 

But  there  is  one  other  provision  of  the  Constitution  which 
appears  to  me  to  be  altogether  decisive  upon  this  point.  Each 
State,  whatever  be  its  population,  is  entitled  to  at  least  one 
representative.  It  may  so  happen  that  the  unrepresented 
surplus,  in  some  one  State,  may  be  greater  than  the  whole  popu- 
lation of  some  other  State ;  and  yet  such  latter  State  would  be 
entitled  to  a  representative.  Upon  what  principle  is  this? 
Surely,  if  the  house  of  representatives  were  national,  some- 
thing like  equality  would  be  found  in  the  constitution  of  it. 
Large  surpluses  would  not  be  arbitrarily  rejected  in  some 
places,  and  smaller  numbers,  not  equal  to  the  general  ratio,  be 
represented  in  others.  There  can  be  but  one  reason  for  this  : 
As  the  Constitution  was  made  by  the  States,  the  true  principles 
of  the  confederation  could  *not  be  preserved,  without  ,-,,,__-. 
giving  to  each  party  to  the  compact  a  place  and  influ-  *- 
ence  in  each  branch  of  the  common  legislature.  This  was  due 
to  their  perfect  equality  as  sovereign  States. 

The  Executive, — In  the  election  of  the  president  and  vice 
president,  the  exclusive  agency  of  the  States,  as  such,  is  pre- 
served with  equal  distinctness.  These  officers  are  chosen  by 
electors,  who  are  themselves  chosen  by  the  people  of  each 
State,  acting  by  and  for  itself,  and  in  such  mode  as  itself  may 
prescribe.  The  number  of  electors  to  which  each  State  is 
entitled  is  equal  to  the  whole  number  of  its  representatives  and 
senators.  This  provision  is  even  more  federative  than  that 
which  apportions  representation  in  the  house  of  representa- 
tives ;  because  it  adds  two  to  the  electors  of  each  State,  and,  so 
far,  places  them  upon  an  equality,  whatever  be  their  compara- 
tive population.  The  people  of  each  State  vote  within  the 
State,  and  not  elsewhere;  and  for  their  own  electors,  and  for 
no  others.  Each  State  prescribes  the  qualifications  of  its  own 
electors,  and  can  alone  compel  them  to  vote.  The  electors, 
when  chosen,  give  their  votes  within  their  respective  States, 


75  TRUE  NATURE  AXD  CHARACTER  OF 

and  at  such  times  and  places  as  the  States  may  respectively 
prescribe. 

There  is  not  the  least  trace  of  national  agency,  in  any  part 
of  this  proceeding.  The  federal  government  can  exercise  no 
rightful  power  in  the  choice  of  its  own  executive.  "The 
people  of  the  United  States  "  are  equally  unseen  in  that  impor- 
tant measure.  Neither  a  majority,  nor  the  whole  of  them 
together,  can  choose  a  president,  except  in  their  character  of 
citizens  of  the  several  States.  Nay,  a  president  may  be  consti- 
tutionally elected,  with  a  decided  majority  of  the  people  against 
him.  For  example,  New  York  has  forty-two  votes,  Pennsylva- 
nia thirty,  Virginia  twenty-three,  Ohio  twenty-one,  North 
Carolina  fifteen,  Kentucky  fourteen,  and  South  Carolina  fif- 
teen. These  seven  States  can  give  a  majority  of  all  the  votes, 
and  each  may  elect  its  own  electors  by  a  majority  of  only  one 
vote.  If  we  add  their  minorities  to  the  votes  of  the  other 
States,  (supposing  those  States  to  be  unanimous  against  the 
candidate,)  we  may  have  a  president  constitutionally  elected, 
with  less  than  half — perhaps  with  little  more  than  a  fourth — of 
the  people  in  his  favor.  It  is  true  that  he  may  also  be  consti- 
tutionally elected,  with  the  majority  of  the  States,  as  such 
against  him,  as  the  above  example  shows ;  because  the  States 
may,  as  before  remarked,  properly  agree,  by  the  provisions  of 
their  compact,  that  they  shall  possess  influence,  in  this  respect, 
proportioned  to  their  population.  But  there  is  no  mode,  con- 
sistent with  the  true  principles  of  free,  representative  govern- 

_  ment,  by  which  a  minority  of  those  to  whom  *en  masse, 
-1  the  elective  franchise  is  confided  can  countervail  the  con- 
current and  opposing  action  of  the  majority.  If  the  president 
could  be  chosen  by  the  people  of  "  the  United  States  "  in  the 
aggregate,  instead  of  by  the  States,  it  is  difficult  to  imagine  a 
case  in  which  a  majority  of  those  people,  concurring  in  the 
same  vote,  could  be  overbalanced  by  a  minority. 

All  doubt  upon  this  point,  however,  is  removed  by  another 
provision  of  the  Constitution  touching  this  subject.  If  no  can- 
didate should  receive  a  majority  of  votes  in  the  electoral  col- 
leges, the  house  of  representatives  elects  the  president,  from 
the  three  candidates  who  have  received  the  largest  electoral 
vote.  In  doing  this  two-thirds  of  the  States  must  be  present 


OUR  FEDERAL  GOVERNMENT.  76 

by  their  representatives,  or  one  of  them,  and  then  they  vote  by 
States,  all  the  members  from  each  State  giving  one  vote,  and  a 
majority  of  all  the  States  being  necessary  to  a  choice.  This  is 
precisely  the  rule  which  prevailed  in  the  ordinary  legislation  of 
that  body,  under  the  articles  of  confederation,  and  which 
proved  its  federative  character,  as  strongly  as  any  other  pro- 
vision of  those  articles.  Why,  then,  should  this  federative 
principle  be  preserved,  in  the  election  of  the  president  by  the 
house  of  representatives,  if  it  was  designed  to  abandon  it,  in 
the  election  of  the  same  officer  by  the  electoral  colleges  ?  No 
good  reason  for  it  has  yet  been  assigned,  so  far  as  I  am  informed. 
On  the  contrary,  there  is  every  just  reason  to  suppose,  that 
those  who  considered  the  principle  safe  and  necessary  in  one 
form  of  election,  would  adhere  to  it  as  equally  safe  and 
necessary  in  every  other,  with  respect  to  the  same  public  trust. 
And  this  is  still  farther  proved  by  the  provision  of  the  Consti- 
tution relating  to  the  election  of  the  vice  president.  In  case  of 
the  death  or  constitutional  disability  of  the  president,  every 
executive  trust  devolves  on  him ;  and,  of  course,  the  same 
general  principle  should  be  applied,  in  the  election  of  both  of 
them.  This  is  done  in  express  terms,  so  far  as  the  action  of 
the  electoral  colleges  is  contemplated.  But  if  those  colleges 
should  fail  to  elect  a  vice  president,  that  trust  devolves  on  the 
senate,  who  are  to  choose  from  the  two  highest  candidates. 
Here  the  federative  principle  is  distinctly  seen ;  for  the  senate 
is  the  representative  of  the  States. 

This  view  of  the  subject  is  still  farther  confirmed  by  the 
clause  of  the  Constitution  relating  to  impeachments.  The 
power  to  try  the  president  is  vested  in  the  senate  alone,  that  is, 
in  the  representatives  of  the  States.  There  is  a  strict  fitness 
and  propriety  in  this  ;  for  those  only,  whose  officer  the  president 
is,  should  be  entrusted  with  the  power  to  remove  him. 

*It  is  believed  to  be  neither  a  forced  nor  an  unreason-  r-  ^^  -, 
able  conclusion  from  all  this,  that  the  executive  depart- 
ment  is,  in  its  structure,  strictly  federative. 

The  Judiciary. — The  judges  are  nominated  by  the  president, 
and  approved  by  the  senate.  Thus  the  nominations  are  made 
by  a  federative  officer,  and  the  approval  and  confirmation  of 
them  depend  on  those  who  are  the  exclusive  representatives  of 


77  TRUE  NATURE  AND  CHARACTER  OF 

the  States.  This  agency  is  manifestly  federative,  and  "the 
people  of  the  United  States"  cannot  mingle  in  it,  in  any  form 
whatever. 

As  the  Constitution  is  federative  in  the  structure  of  all  three 
of  its  great  departments,  it  is  equally  so  in  ilie  power  of  amend- 
ment. 

Congress  may  propose  amendments,  "  whenever  two-thirds  of 
both  houses  shall  deem  it  necessary."  This  secures  the  States 
against  any  action  upon  the  subject,  by  the  people  at  large.  In 
like  manner,  congress  may  call  a  convention  for  proposing 
amendments,  "  on  the  application  of  the  -legislatures  of  two- 
thirds  of  the  several  States.  It  is  remarkable  that,  whether 
congress  or  the  States  act  upon  the  subject,  the  same  proportion 
is  required ;  not  less  than  two-thirds  of  either  being  authorized 
to  act.  From  this  it  is  not  unreasonable  to  conclude,  that  the 
convention  considered  that  the  same  power  would  act  in  both 
cases ;  to  wit,  the  power  of  the  States,  who  might  effect  their 
object  either  by  their  separate  action  as  States,  or  by  the  action 
of  congress,  their  common  federative  agent ;  but,  whether  they 
adopted  the  one  mode  or  the  other,  not  less  than  two-thirds  of 
them  should  be  authorized  to  act  efficiently. 

The  amendments  thus  proposed  "  shall  be  valid  to  all  intents 
and  purposes,  as  part  of  this  Constitution,  when  ratified  by  the 
legislatures  of  three-fourths  of  the  several  States,  or  ly  conven- 
tions in  three-fourths  thereof,  as  the  one  or  the  other  mode  of 
ratification  may  be  proposed  by  congress."  It  is  the  act  of 
adoption  or  ratification  alone  which  makes  a  constitution.  In 
the  case  before  us,  the  States  alone  can  perform  that  act.  The 
language  of  the  Constitution  admits  of  no  doubt,  and  gives  no 
pretext  for  double  construction.  It  is  not  the  people  of  the 
United  States  in  the  aggregate,  merely  acting  in  their  several 
States,  who  can  ratify  amendments.  Three-fourths  of  the  seve- 
ral States  can  alone  do  this.  The  idea  of  separate  and  inde- 
pendent political  corporations  could  not  be  more  distinctly  con- 
veyed, by  any  form  of  words.  If  the  people  of  the  United 
States,  as  one  people,  but  acting  in  their  several  States,  could 
ratify  amendments,  then  the  very  language  of  the  Constitution 
l~*78~l  recluires  tnat  three-fourths  of  them  shall  *concur  therein. 
Is  it  not,  then,  truly  wonderful  that  no  mode  has  yet 


OUR   FEDERAL   GOVERNMENT.  78 

been  prescribed  to  ascertain  whether  three-fourths  of  them  do 
concur  or  not  ?  By  what  power  can  the  necessary  arrangement 
upon  this  point  be  effected?  In  point  of  fact,  amendments 
have  already  been  made,  in  strict  conformity  with  this  provision 
of  the  Constitution.  We  ask  our  author,  whether  three-fourths 
of  the  people  of  the  United  States  concurred  in  those  amend- 
ments or  not ;  and  if  they  did,  whence  does  he  derive  the  proof 
of  it? 

If  our  author,  and  the  politicians  of  his  school,  be  correct  in 
the  idea,  that  the  Constitution  was  formed  by  "  the  people  of 
the  United  States,"  and  not  by  the  States,  as  such,  this  clause 
relating  to  amendments  presents  a  singular  anomaly  in  politics. 
Their  idea  is,  that  the  State  sovereignties  were  merged,  to  a 
certain  extent,  in  that  act,  and  that  the  government  established 
was  emphatically  the  government  of  the  people  of  the  United 
States.  And  yet,  those  same  people  can  neither  alter  nor 
amend  that  government!  In  order  to  perform  this  essential 
function,  it  is  necessary  to  call  again  into  life  and  action  those 
very  State  sovereignties  which  were  supposed  to  be  merged  and 
dead,  by  the  very  act  of  creating  the  instrument  which  they  are 
required  to  amend !  To  alter  or  amend  a  government  requires 
the  same  extent  of  power  which  is  required  to  form  one ;  for 
every  alteration  or  amendment  is,  as  to  so  much,  a  new  govern- 
ment. And,  of  all  political  acts,  the  formation  of  a  constitution 
of  government  is  that  which  admits  and  implies,  the  most  dis- 
tinctly and  to  the  fullest  extent,  the  existence  of  absolute, 
unqualified,  unconditional  and  unlimited  sovereignty.  So  long, 
therefore,  as  the  power  of  amending  the  Constitution  rests 
exclusively  with  the  States,  it  is  idle  to  contend  that  they  are 
less  sovereign  now  than  they  were  before  the  adoption  of  that 
instrument. 

The  idea  which  I  am  endeavoring  to  enforce,  of  the  federa- 
tive character  of  the  Constitution,  is  still  farther  confirmed  by 
that  clause  of  the  article  under  consideration,  which  provides 
that  no  amendment  shall  be  made  to  deprive  any  State  of  its 
equal  suffrage  in  the  senate,  without  its  own  consent.  So 
strongly  were  the  States  attached  to  that  perfect  equality  which 
their  perfect  sovereignty  implied,  and  so  jealous  were  they  of 
every  attack  upon  it,  that  they  guarded  it,  by  an  express  pro- 


78  TRUE  NATURE  AND  CHARACTER  OF 

vision  of  the  Constitution,  against  the  possibility  of  overthrow. 
All  other  rights  they  confided  to  that  power  of  amendment 
which  they  reposed  in  three-fourths  of  all  the  States ;  but  this 
they  refused  to  entrust,  except  to  the  separate,  independent 
and  sovereign  *will  of  each  State;  -giving  to  each,  in  its 
own  case,  an  absolute  negative  upon  all  the  rest.* 
The  object  of  the  preceding  pages  has  been  to  show  that  the 
Constitution  is  federative,  in  the  power  which  framed  it ;  fede- 
rative in  the  power  which  adopted  and  ratified  it ;  federative  in 
the  power  which  sustains  and  keeps  it  alive  ;  federative  in  the 
power  by  which  alone  it  can  be  altered  or  amended ;  and  fede- 
rative in  the  structure  of  all  its  departments.  In  what  respect, 
then,  can  it  justly  be  called  a  consolidated  or  national  govern- 
ment ?  Certainly,  the  mere  fact  that,  in  particular  cases,  it  is 
authorized  to  act  directly  on  the  people,  does  not  disprove  its 
federative  character,  since  that  very  sovereignty  in  the  States, 
which  a  confederation  implies,  includes  within  it  the  right  of 
the  State  to  subject  its  own  citizens  to  the  action  of  the  com- 
mon authority  of  the  confederated  States,  in  any  form  which 
may  seem  proper  to  itself.  Neither  is  our  Constitution  to  be 
deemed  the  less  federative,  because  it  was  the  object  of  those 
who  formed  it  to  establish  "  a  government,"  and  one  effective 
for  all  the  legitimate  purposes  of  government.  Much  emphasis 
has  been  laid  upon  this  word,  and  it  has  even  been  thought,  by 
one  distinguished  statesman  of  Judge  Story's  school,  that  ours 
is  "  a  government  proper,"  which  I  presume  implies  that  it  is  a 
government  in  a  peculiarly  emphatic  sense.  I  confess  that  I 
do  not  very  clearly  discern  the  difference  between  a  government 
and  a  government  proper.  Nothing  is  a  government  which  is 
not  properly  so ;  and  whatever  is  properly  a  government,  is  a 
government  proper.  But  whether  ours  is  a  "  government  pro- 
per," or  only  a  simple  government,  does  not  prove  that  it  is  not 
a  confederation,  unless  it  be  true  that  a  confederation  cannot 
be  a  government.  For  myself,  I  am  unable  to  discover  why 

*  So  absolutely  is  the  federal  government  dependent  on  the  State3  for  its 
existence  at  all  times,  that  it  may  be  absolutely  dissolved,  -without  the  least 
violence,  by  the  simple  refusal  of  a  part  of  the  States  to  act.  If,  for  example, 
a  few  States,  having  a  majority  of  electoral  votes,  should  refuse  to  appoint 
electors  of  president  and  vice  president,  there  would  be  no  constitutional  exe- 
cutive, and  the  whole  machinery  of  the  government  would  stop. 


OUR  FEDERAL   GOVERNMENT.  79 

States,  absolutely  sovereign,  may  not  create  for  themselves,  by 
compact,  a  common  government,  with  powers  as  extensive  and 
supreme  as  any  sovereign  people  can  confer  on  a  government 
established  by  themselves.  In  what  other  particular  ours  is  a 
consolidated  or  national  government,  I  leave  it  to  the  advocates 
of  that  doctrine  to  show. 

We  come  now  to  a  more  particular  and  detailed  examination 
of  the  question,  "  Who  is  the  final  judge  or  interpreter  in  con- 
stitutional *controversies?"  The  fourth  chapter  of  this  I 
division  of  the  author's  work  is  devoted  to  this  enquiry  ; 
and  the  elaborate  examination  which  he  has  given  to  the  sub- 
ject, shows  that  he  attached  a  just  importance  to  it.  The  con- 
clusion, however,  to  which  he  has  arrived,  leaves  still  unsettled 
the  most  difficult  and  contested  propositions  which  belong  to 
this  part  of  the  Constitution.  His  conclusion  is,  that,  "  in  all 
questions  of  a  judicial  nature,"  the  supreme  court  of  the  United 
States  is  the  final  umpire ;  and  that  the  States,  as  well  as  indi- 
viduals, are  absolutely  bound  by  its  decisions.  His  reasoning 
upon  this  part  of  the  subject  is  not  new,  and  does  not  strike  me 
as  being  particularly  forcible.  Without  deeming  it  necessary 
to  follow  him  in  the  precise  order  of  his  argument,  I  shall  en- 
deavor to  meet  it  in  all  its  parts,  in  the  progress  of  this  exami- 
nation. Its  general  outline  is  this:  It  is  within  the  proper 
function  of  the  judiciary  to  interpret  the  laws  ;  the  Constitution 
is  the  supreme  law,  and  therefore  it  is  within  the  proper  func- 
tion of  the  judiciary  to  interpret  the  Constitution ;  of  course, 
it  is  the  province  of  the  federal  judiciary  to  interpret  the  Fede- 
ral Constitution.  And  as  that  Constitution,  and  all  laws  made 
in  pursuance  thereof,  are  the  supreme  law  of  the  land,  anything 
in  the  laws  or  constitution  of  any  State  to  the  contrary  not- 
withstanding, therefore,  the  interpretations  of  that  Constitu- 
tion, as  given  by  the  supreme  court,  are  obligatory,  final  and 
conclusive,  upon  the  people  and  the  States. 

Before  we  enter  upon  this  investigation,  it  is  proper  to  place 
the  proposition  to  be  discussed  in  terms  somewhat  more  definite 
and  precise  than  those  which  the  author  has  employed.  What, 
then,  is  meant  by  "final  judge  and  interpreter?"  In  the  ordi- 
nary acceptation  of  these  terms,  we  should  understand  by  them 
a  tribunal  having  lawful  cognizance  of  a  subject,  and  from 


g0  TRUE  NATURE  AND  CHARACTER  OF 

whose  decisions  there  is  no  appeal.  In  this  view  of  the  ques- 
tion there  can  be  no  difficulty  in  admitting  that  the  decisions  of 
the  supreme  court  are  final  and  conclusive.  Whatever  comes 
within  the  legitimate  cognizance  of  that  tribunal,  it  has  a  right 
to  decide,  whether  it  be  a  question  of  the  law,  or  of  the  Con- 
stitution ;  and  no  other  tribunal  can  reverse  its  decision.  The 
Constitution,  which  creates  the  supreme  court,  creates  no  other 
court  of  superior  or  appellate  jurisdiction  to  it;  and,  conse- 
quently, its  decisions  are  strictly  "final."  There  is  no  power 
in  the  same  government  to  which  that  court  belongs,  to  reverse 
or  control  it,  nor  are  there  any  means  therein  of  resisting  its 
authority.  So  far,  therefore,  as  the  Federal  Constitution  has 
provided  for  the  subject  at  all,  the  supreme  court  is,  beyond 
question,  the  final  judge  or  arbiter ;  and  this,  too,  whether  the 
jurisdiction  which  it  exercises  be  legitimate  or  usurped. 
r*«n  *The  terms  "constitutional  controversies"  are  still 
more  indefinite.  Every  controversy  which  is  submitted 
to  the  decision  of  a  judicial  tribunal,  whether  State  or  Federal, 
necessarily  involves  the  constitutionality  of  the  law  under  which 
it  arises.  If  the  law  be  not  constitutional,  the  court  cannot  en- 
force it,  and,  of  course,  the  question  whether  it  be  constitutional 
or  not,  necessarily  arises  in  every  case  to  which  the  court  is 
asked  to  apply  it.  The  very  act  of  enforcing  a  law  presupposes 
that  its  constitutionality  has  been  determined.  In  this  sense, 
every  court,  whether  State  or  federal,  is  the  "judge  or  arbiter 
of  constitutional  controversies,"  arising  in  causes  before  it ;  and 
if  there  be  no  appeal  from  its  decision,  it  is  the  "final"  judge 
or  arbiter,  in  the  sense  already  expressed. 

Let  us  now  enquire  what  "  constitutional  controversies"  the 
federal  courts  have  authority  to  decide,  and  how  far  its  decisions 
are  final  and  conclusive  against  all  the  world. 

The  third  article  of  the  Constitution  provides  that  "  The  ju- 
dicial powers  shall  extend  to  all  cases  in  law  and  equity,  arising 
under  this  Constitution,  the  laws  of  the  United  States,  and  the 
treaties  made,  or  which  shall  be  made,  under  their  authority ;  to 
all  cases  affecting  ambassadors,  other  public  ministers  and  con- 
suls ;  to  all  cases  of  admiralty  and  maritime  jurisdiction  ;  to 
controversies  to  which  the  United  States  shall  be  a  party ;  to 
controversies  between  two  or  more  States ;  between  a  State  and 


OUR   FEDERAL  GOVERNMENT.  81 

citizens  of  another  State ;  between  citizens  of  different  States  ; 
between  citizens  of  the  same  State,  claiming  lands,  under  grants 
of  different  States ;  and  between  a  State  and  the  citizens  thereof, 
and  foreign  States,  citizens  or  subjects." 

The  eleventh  amendment  provides  that  "  The  judicial  power 
of  the  United  States  shall  not  be  construed  to  extend  to  any 
suit  in  law  or  equity,  commenced  or  prosecuted  against  one  of 
the  United  States,  by  citizens  of  another  State,  or  by  citizens 
or  subjects  of  any  foreign  State." 

It  will  be  conceded  on  all  hands  that  the  federal  courts  have 
no  jurisdiction  except  what  is  here  conferred.  The  judiciary, 
as  a  part  of  the  federal  government,  derives  its  powers  only 
from  the  Constitution  which  creates  that  government.  The  term 
"  cases"  implies  that  the  subject  matter  shall  be  proper  for  ju- 
dicial decision  ;  and  the  parties  between  whom  alone  jurisdiction 
can  be  entertained,  are  specifically  enumerated.  Beyond  these 
"  cases"  and  these  parties  they  have  no  jurisdiction. 

There  is  no  part  of  the  Constitution  in  which  the  framers  of 
it  have  displayed  a  more  jealous  care  of  the  rights  of  the  States, 
than  in  the  limitations  of  the  judicial  power.  It  is  re-  r-  ^QQ  -• 
markable  that  no  power  is  conferred  except  what  is  ab- 
solutely necessary  to  carry  into  effect  the  general  design,  and 
accomplish  the  general  object  of  the  States,  as  independent, 
confederated  States.  The  federal  tribunals  cannot  take  cogni- 
zance of  any  case  whatever  in  which  all  the  States  hare  not  an 
equal  and  common  interest  that  a  just  and  impartial  decision 
shall  be  had.  A  brief  analysis  of  the  provisions  of  the  Con- 
stitution, will  make  this  sufficiently  clear. 

Cases  "  arising  under  the  Constitution"  are  those  in  which 
some  right  or  privilege  is  denied,  which  the  Constitution  con- 
fers, or  something  is  done,  which  the  Constitution  prohibits,  as 
expressed  in  the  Constitution  itself.  Those  which  arise  "under 
the  laws  of  the  United  States"  are  such  as  involve  rights  or  du- 
ties, which  result  from  the  legislation  of  congress.  Cases  of 
these  kinds  are  simply  the  carrying  out  of  the  compact  or  agree- 
ment made  between  the  States,  by  the  Constitution  itself,  and, 
of  course,  all  the  States  are  alike  interested  in  them.  For  this 
reason  alone,  if  there  were  no  other,  they  ought  to  be  entrusted 
to  the  common  tribunals  of  all  the  States.  There  is  another 


g2  TRUE  NATURE  AND  CHARACTER  OF 

reason,  however,  equally  conclusive.  The  judicial  should  al- 
ways be  at  least  co-extensive  with  the  legislative  power  ;  for  it 
would  be  a  strange  anomaly,  and  could  produce  nothing  but  dis- 
order and  confusion,  to  confer  on  a  government  the  power  to 
make  a  law,  without  conferring,  at  the  same  time,  the  right  to 
interpret,  and  the  power  to  enforce  it. 

Cases  arising  under  treaties,  made  under  the  authority  of  the 
United  States,  and  those  "  affecting  ambassadors  and  other 
public  ministers  and  consuls,"  could  not  properly  be  entrusted 
to  any  other  than  the  federal  tribunals.  Treaties  are  made 
under  the  common  authority  of  all  the  States,  and  all,  alike, 
are  bound  for  the  faithful  observance  of  them.  Ambassadors 
and  other  public  ministers  and  consuls  are  received  under  the 
common  authority  of  all  the  States,  and  their  duties  relate  only 
to  matters  involving  alike  the  interests  of  all.  The  peace  of 
the  country,  and  the  harmony  of  its  relations  with  foreign  pow- 
ers, depend,  in  a  peculiar  degree,  on  the  good  faith  with  which 
its  duties  in  reference  to  these  subjects  are  discharged.  Hence 
it  would  be  unsafe  to  entrust  them  to  any  other  than  their  own 
control ;  and  even  if  this  were  not  so,  it  would  be  altogether  in- 
congruous to  appeal  to  a  State  tribunal,  to  enforce  the  rights, 
the  obligations  or  the  duties  of  the  United  States.  For  like 
reasons,  cases  of  admiralty  and  maritime  jurisdiction  are  pro- 
perly entrusted  to  the  federal  tribunals. 

Controversies  to  which  the  United  States  shall  be  a  party 
should,  *upon  general  principles,  belong  only  to  her  own 
-"  courts.  There  would  be  neither  propriety  nor  justice  in 
permitting  any  one  State  to  decide  a  case  in  which  all  the 
States  are  parties.  In  like  manner  those  between  two  or  more 
States — between  a  State  and  citizens  of  another  State,  where 
the  State  is  plaintiff — (it  cannot  be  sued] — and  between  citizens 
of  different  States,  could  not  be  entrusted  to  the  tribunals  of 
any  particular  State  interested,  or  whose  citizens  are  interested 
therein,  without  danger  of  injustice  and  partiality.  Jurisdiction 
is  given  to  the  federal  courts,  in  these  cases,  simply  because 
they  are  equally  interested  for  all  the  parties,  are  the  common 
courts  of  all  the  parties,  and  therefore  are  presumed  to  form  the 
only  fair  and  impartial  tribunal  between  them.  The  same 
reasoning  applies  to  cases  between  citizens  of  the  same  State, 


OUR    FEDERAL   GOVERNMENT.  gg 

claiming  lands  under  grants  of  different  States.  Cases  of  this 
sort  involve  questions  of  the  sovereign  power  of  the  States,  and 
could  not,  with  any  show  of  propriety,  be  entrusted  to  the  de- 
cision of  either  of  them,  interested  as  it  would  be  to  sustain  its 
own  acts,  against  those  of  the  sister  State.  The  jurisdiction  in 
this  case  is  given  upon  the  same  principles  which  give  it  in  cases 
between  two  or  more  States. 

Controversies  between  a  State  or  the  citizens  thereof,  and 
foreign  States,  citizens  or  subjects,  depend  on  a  different  princi- 
ple, but  one  equally  affecting  the  common  rights  and  interests 
of  all  the  States.  A  foreign  State  cannot,  of  course,  be  sued ; 
she  can  appear  in  our  courts  only  as  plaintiff.  Yet,  in  whatever 
form  such  controversies,  or  those  affecting  tfre  citizens  of  a 
foreign  State,  may  arise,  all  the  States  have  a  deep  interest  that 
an  impartial  tribunal,  satisfactory  to  the  foreign  party,  should 
be  provided.  The  denial  of  justice  is  a  legitimate,  and  not  an 
unfruitful  cause  of  war.  As  no  State  can  be  involved  in  war 
without  involving  all  the  rest,  they  all  have  a  common  interest 
to  withdraw  from  the  State  tribunals  a  jurisdiction  which  may 
bring  them  within  the  danger  of  that  result.  All  the  States 
are  alike  bound  to  render  justice  to  foreign  States  and  their 
people ;  and  this  common  responsibility  gives  them  a  right  to 
demand  that  every  question  involving  it  shall  be  decided  by 
their  common  judicatory. 

This  brief  review  of  the  judicial  power  of  the  United  States, 
as  given  in  the  Constitution,  is  not  offered  as  a  full  analysis  of 
the  subject ;  for  the  question  before  us  does  not  render  any 
such  analysis  necessary.  My  design  has  been  only  to  show  with 
what  extreme  reserve  judicial  power  has  been  conferred,  and 
with  what  caution  it  has  been  restricted  to  those  cases,  only, 
which  the  new  relation  between  the  States,  established  by  the 
Constitution,  rendered  absolutely  *necessary.  In  all 
the  cases  above  supposed,  the  jurisdiction  of  the  federal  *• 
courts  is  clear  and  undoubted ;  and  as  the  States  have,  in  the 
frame  of  the  Constitution,  agreed  to  submit  to  the  exercise  of 
this  jurisdiction,  they  are  bound  to  do  so,  and  to  compel  their 
people  to  like  submission.  But  it  is  to  be  remarked,  that  they 
are  bound  only  by  their  agreement,  and  not  beyond  it.  They 
are  under  no  obligation  to  submit  to  the  decisions  of  the  supreme 
7 


g.|  TRUE  NATURE  AND  CHARACTER  OF 

court,  on  subject  matter  not  properly  cognizable  before  it,  nor 
to  those  between  parties  not  responsible  to  its  jurisdiction. 
Who,  then,  is  to  decide  this  point  ?  Shall  the  supreme  court 
decide  it  for  itself,  and  against  all  the  world  ?  It  is  admitted 
that  every  court  must  necessarily  determine  every  question  of 
jurisdiction  which  arises  before  it,  and,  so  far,  it  must  of  course 
be  the  judge  of  its  own  powers.  If  it  be  a  court  of  the  last  re- 
sort, its  decision  is  necessarily  final,  so  far  as  those  authorities 
are  concerned,  which  belong  to  the  same  system  of  government 
Avith  itself.  There  is,  in  fact,  no  absolute  and  certain  limita- 
tion, in  any  constitutional  government,  to  the  powers  of  its  own 
judiciary ;  for,  as  those  powers  are  derived  from  the  Constitu- 
tion, and  as  the  judges  are  the  interpreters  of  the  Constitution, 
there  is  nothing  to  prevent  them  from  interpreting  in  favor  of 
any  power  which  they  may  claim.  The  supreme  court,  there- 
fore, may  assume  jurisdiction  over  subjects  and  between  parties, 
not  allowed  by  the  constitution,  and  there  is  no  power  in  the 
federal  government  to  gainsay  it.  Even  the  impeachment  and 
removal  of  the  judges,  for  ignorance  or  corruption,  would  not 
invalidate  their  decisions  already  pronounced.  Is  there,  then, 
no  redress  ?  The  Constitution  itself  will  answer  this  question, 
in  the  most  satisfactory  manner. 

The  tenth  article  of  the  amendments  of  the  Constitution  pro- 
vides that  "  The  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States,  arc  reserved 
to  the  States  respectively,  or  to  the  people."  The  powers  thus 
reserved,  are  not  only  reserved  against  the  federal  government 
in  whole,  but  against  each  and  every  department  thereof.  The 
judiciary  is  no  more  excepted  out  of  the  reservation  than  is  the 
legislature  or  the  executive.  Of  what  nature,  then,  are  those 
reserved  powers  ?  Not  the  powers,  if  any  such  there  be,  which 
are  possessed  by  all  the  States  together,  for  the  reservation  is 
to  "the  States  respectively ;"  that  is,  to  each  State  separately 
and  distinctly.  Now  we  can  form  no  idea  of  any  power  pos- 
sessed by  a  State  as  such,  and  independent  of  every  other  State, 
which  is  not,  in  its  nature,  a  sovereign  power.  Every  power  so 
reserved,  therefore,  must  be  of  such  a  character  that  each  State 

may  *exerc*se  **>  without  the  least  reference  or  responsi- 

bility  to  any  other  State  whatever. 


OUR   FEDERAL   GOVERNMENT.  85 

We  have  already  seen  that  the  Constitution  of  the  United 
States  was  formed  by  the  States  as  such,  and  the  reservation 
above  quoted  is  an  admission  that,  in  performing  that  Avork, 
they  acted  as  independent  and  sovereign  States.  It  is  incident 
to  every  sovereignty  to  be  alone  the  judge  of  its  own  compacts 
and  agreements.  No  other  State  or  assemblage  of  States  has 
the  least  right  to  interfere  with  it,  in  this  respect,  and  cannot 
do  so  without  impairing  its  sovereignty.  The  Constitution  of 
the  United  States  is  but  the  agreement  which  each  State  has 
made,  with  each  and  all  the  other  States,  and  is  not  distin- 
guishable, in  the  principle  we  are  examining,  from  any  other  agree- 
ment between  sovereign  States.  Each  State,  therefore,  has  aright 
to  interpret  that  agreement  for  itself,  unless  it  has  clearly  waived 
that  right  in  favor  of  another  power.  That  the  right  is  not 
waived  in  the  case  under  consideration,  is  apparent  from  the 
fact  already  stated,  that  if  the  judiciary  be  the  sole  judges  of 
the  extent  of  their  own  powers,  their  powers  are  universal,  and 
the  enumeration  in  the  Constitution  is  idle  and  useless.  But  it 
is  still  farther  apparent  from  the  following  view. 

The  Federal  Government  is  the  creature  of  the  States.  It  is 
not  a  party  to  the  Constitution,  but  the  result  of  it — the  creation 
of  that  agreement  which  was  made  by  the  States  as  parties.  It 
is  a  mere  agent,  entrusted  with  limited  powers  for  certain  spe- 
cific objects;  which  powers  and  objects  are  enumerated  in  the 
Constitution.  Shall  the  agent  be  permitted  to  judge  of  the  ex- 
tent of  his  own  powers,  without  reference  to  his  constituent? 
To  a  certain  extent  he  is  compelled  to  do  this,  in  the  very  act 
of  exercising  them,  but  this  is  always  in  subordination  to  the 
authority  by  whom  his  powers  were  conferred.  If  this  were  not 
so,  the  result  would  be,  that  the  agent  would  possess  every  power 
which  the  constituent  could  confer,  notwithstanding  the  plainest 
and  most  express  terms  of  the  grant.  This  would  be  against  all 
principle  and  all  reason.  If  such  a  rule  should  prevail  in  re- 
gard to  government,  a  written  constitution  would  be  the  idlest 
thing  imaginable.  It  would  afford  no  barrier  against  the  usur- 
pations of  the  government,  and  no  security  for  the  rights  and 
liberties  of  the  people.  If  then  the  federal  government  has  no 
authority  to  judge,  in  the  last  resort,  of  the  extent  of  its  own 
powers,  with  what  propriety  can  it  be  said  that  a  single  depart- 


g4  TRUE  NATURE  AND  CHARACTER  OF 

court,  on  subject  matter  not  properly  cognizable  before  it,  nor 
to  those  between  parties  not  responsible  to  its  jurisdiction. 
Who,  then,  is  to  decide  this  point  ?  Shall  the  supreme  court 
decide  it  for  itself,  and  against  all  the  world  ?  It  is  admitted 
that  every  court  must  necessarily  determine  every  question  of 
jurisdiction  which  arises  before  it,  and,  so  far,  it  must  of  course 
be  the  judge  of  its  own  powers.  If  it  be  a  court  of  the  last  re- 
sort, its  decision  is  necessarily  final,  so  far  as  those  authorities 
are  concerned,  which  belong  to  the  same  system  of  government 
with  itself.  There  is,  in  fact,  no  absolute  and  certain  limita- 
tion, in  any  constitutional  government,  to  the  powers  of  its  own 
judiciary ;  for,  as  those  powers  are  derived  from  the  Constitu- 
tion, and  as  the  judges  are  the  interpreters  of  the  Constitution, 
there  is  nothing  to  prevent  them  from  interpreting  in  favor  of 
any  power  which  they  may  claim.  The  supreme  court,  there- 
fore, may  assume  jurisdiction  over  subjects  and  between  parties, 
not  allowed  by  the  constitution,  and  there  is  no  power  in  the 
federal  government  to  gainsay  it.  Even  the  impeachment  and 
removal  of  the  judges,  for  ignorance  or  corruption,  would  not 
invalidate  their  decisions  already  pronounced.  Is  there,  then, 
no  redress  ?  The  Constitution  itself  will  answer  this  question, 
in  the  most  satisfactory  manner. 

The  tenth  article  of  the  amendments  of  the  Constitution  pro- 
vides that  "  The  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States,  arc  reserved 
to  the  States  respectively,  or  to  the  people."  The  powers  thus 
reserved,  are  not  only  reserved  against  the  federal  government 
in  whole,  but  against  each  and  every  department  thereof.  The 
judiciary  is  no  more  excepted  out  of  the  reservation  than  is  the 
legislature  or  the  executive.  Of  what  nature,  then,  are  those 
reserved  powers  ?  Not  the  powers,  if  any  such  there  be,  which 
are  possessed  by  all  the  States  together,  for  the  reservation  is 
to  "the  States  respectively ;"  that  is,  to  each  State  separately 
and  distinctly.  Now  we  can  form  no  idea  of  any  power  pos- 
sessed by  a  State  as  such,  and  independent  of  every  other  State, 
which  is  not,  in  its  nature,  a  sovereign  power.  Every  power  so 
reserved,  therefore,  must  be  of  such  a  character  that  each  State 
may  *exercise  it,  without  the  least  reference  or  responsi- 
J  bility  to  any  other  State  whatever. 


OUR   FEDERAL   GOVERNMENT.  85 

We  have  already  seen  that  the  Constitution  of  the  United 
States  was  formed  by  the  States  as  such,  and  the  reservation 
above  quoted  is  an  admission  that,  in  performing  that  work, 
they  acted  as  independent  and  sovereign  States.  It  is  incident 
to  every  sovereignty  to  be  alone  the  judge  of  its  own  compacts 
and  agreements.  No  other  State  or  assemblage  of  States  has 
the  least  right  to  interfere  with  it,  in  this  respect,  and  cannot 
do  so  without  impairing  its  sovereignty.  The  Constitution  of 
the  United  States  is  but  the  agreement  which  each  State  has 
made,  with  each  and  all  the  other  States,  and  is  not  distin- 
guishable, in  the  principle  we  are  examining,  from  any  other  agree- 
ment between  sovereign  States.  Each  State,  therefore,  has  aright 
to  interpret  that  agreement  for  itself,  unless  it  has  clearly  waived 
that  right  in  favor  of  another  power.  That  the  right  is  not 
waived  in  the  case  under  consideration,  is  apparent  from  the 
fact  already  stated,  that  if  the  judiciary  be  the  sole  judges  of 
the  extent  of  their  own  powers,  their  powers  are  universal,  and 
the  enumeration  in  the  Constitution  is  idle  and  useless.  But  it 
is  still  farther  apparent  from  the  following  view. 

The  Federal  Government  is  the  creature  of  the  States.  It  is 
not  a  party  to  the  Constitution,  but  the  result  of  it — the  creation 
of  that  agreement  which  was  made  by  the  States  as  parties.  It 
is  a  mere  agent,  entrusted  with  limited  powers  for  certain  spe- 
cific objects;  which  powers  and  objects  are  enumerated  in  the 
Constitution.  Shall  the  agent  be  permitted  to  judge  of  the  ex- 
tent of  his  own  powers,  without  reference  to  his  constituent? 
To  a  certain  extent  he  is  compelled  to  do  this,  in  the  very  act 
of  exercising  them,  but  this  is  always  in  subordination  to  the 
authority  by  whom  his  powers  were  conferred.  If  this  were  not 
so,  the  result  would  be,  that  the  agent  would  possess  every  power 
which  the  constituent  could  confer,  notwithstanding  the  plainest 
and  most  express  terms  of  the  grant.  This  would  be  against  all 
principle  and  all  reason.  If  such  a  rule  should  prevail  in  re- 
gard to  government,  a  written  constitution  would  be  the  idlest 
thing  imaginable.  It  would  afford  no  barrier  against  the  usur- 
pations of  the  government,  and  no  security  for  the  rights  and 
liberties  of  the  people.  If  then  the  federal  government  has  no 
authority  to  judge,  in  the  last  resort,  of  the  extent  of  its  own 
powers,  with  what  propriety  can  it  be  said  that  a  single  depart- 


85 


TRUE  NATURE  AND  CHARACTER  OF 


ment  of  that  government  may  do  so  ?  Na  y,  it  is  said  that  this 
department  may  not  only  judge  for  itself,  but  for  the  other  de- 
partments also.  This  is  an  absurdity  as  pernicious  as  it  is 
*gross  and  palpable.  If  the  judiciary  may  determine  the 
L  °"  J  powers  of  the  federal  government,  it  may  pronounce  them 
either  less  or  more  than  they  really  are .  That  government  at  least 
would  have  no  right  to  complain  of  the  decisions  of  an  umpire 
which  it  had  chosen  for  itself,  and  endeavored  to  force  upon  the 
States  and  the  people.  Thus  a  single  department  might  deny  to 
both  the  others,  salutary  powers  which  they  really  possessed,  and 
which  the  public  interest  or  the  public  safety  might  require  them 
to  exercise ;  or  it  might  confer  on  them  powers  never  conceded, 
inconsistent  with  private  right,  and  dangerous  to  public  liberty. 
In  construing  the  powers  of  a  free  and  equal  government,  it 
is  enough  to  disprove  the  existence  of  any  rule,  to  show  that 
such  consequences  as  these  will  result  from  it.  Nothing  short 
of  the  plainest  and  most  unequivocal  language  should  reconcile 
us  to  the  adoption  of  such  a  rule.  No  such  language  can  be 
found  in  our  Constitution.  The  only  clause,  from  which  the 
rule  can  be  supposed  to  be  derived,  is  that  which  confers  juris- 
diction in  "all  cases  arising  under  the  Constitution,  and  the 
laws  made  in  pursuance  thereof;  but  this  clause  is  clearly  not 
susceptible  of  any  such  construction.  Every  right  may  be  said 
to  be  a  constitutional  right,  because  no  right  exists  which  the 
Constitution  disallows ;  and  consequently  every  remedy  to  en- 
force those  rights  presents  "  a  case  arising  under  the  Constitu- 
tion." But  a  construction  so  latitudinous  will  scarcely  be  con- 
tended for  by  any  one.  The  clause  under  consideration  gives 
jurisdiction  only  as  to  those  matters,  and  between  those  parties, 
enumerated  in  the  Constitution  itself.  Whenever  such  a  case 
arises,  the  federal  courts  have  cognizance  of  it •;  but  the  right  to 

"  O  '  •       O 

decide  a  case  arising  under  the  Constitution  does  not  necessarily 
imply  the  right  to  determine  in  the  last  resort  what  that  Con- 
stitution is.  If  the  federal  courts  should,  in  the  very  teeth  of 
the  eleventh  amendment,  take  jurisdiction  of  cases  "commenced 
or  prosecuted  against  one  of  the  States  by  citizens  of  another 
State,"  the  decision  of  those  courts,  that  they  had  jurisdiction, 
would  certainly  not  settle  the  Constitution  in  that  particular. 
The  State  would  be  under  no  obligation  to  submit  to  such  a  de- 


OUR   FEDERAL   GOVERNMENT.        .  86 

cision,  and  it  would  resist  it  by  virtue  of  its  sovereign  right  to 
decide  for  itself,  whether  it  had  agreed  to  the  exercise  of  such  a 
jurisdiction  or  not. 

Considering  the  nature  of  our  system  of  government,  the 
States  ought  to  be,  and  I  presume  always  will  be,  extremely 
careful  not  to  interpose  their  sovereign  power  against  the  de- 
cisions of  the  supreme  court  in  any  case  where  that  court  clearly 
has  jurisdiction.  Of  this  character  are  the  cases  already  cited 
at  the  commencement  of  this  *inquiry ;  such,  for  ex- 
ample, as  those  between  two  States,  those  affecting  for-  ^ 
eign  ministers,  those  of  admiralty  and  maritime  jurisdiction, 
&c.  As  to  all  these  subjects  the  jurisdiction  is  clear,  and  no 
State  can  have  any  interest  to  dispute  it.  The  decisions  of  the 
supreme  court,  therefore,  ought  to  be  considered  as  final  and 
conclusive,  and  it  would  be  a  breach  of  the  contract  on  the  part 
of  any  State  to  refuse  submission  to  them.  There  are,  how- 
ever, many  cases  involving  questions  of  the  powers  of  govern- 
ment, State  and  federal,  which  cannot  assume  a  proper  form  for 
judicial  investigation.  Most  questions  of  mere  political  power, 
are  of  this  sort;  and  such  are  all  questions  between  a  State  and 
the  United  States.  As  to  these,  the  Constitution  confers  no 
jurisdiction  on  the  federal  courts,  and,  of  course,  it  provides  no 
common  umpire  to  whose  decision  they  can  be  referred.  In 
such  cases,  therefore,  the  State  must  of  necessity  decide  for  it- 
self. But  there  are  also  cases  between  citizen  and  citizen, 
arising  under  the  laws  of  the  United  States,  and  between  the 
United  States  and  the  citizen,  arising  in  the  same  way.  So  far 
as  the  federal  tribunals  have  cognizance  of  such  cases,  their  de- 
cisions are  final.  If  the  constitutionality  of  the  law  under 
which  the  case  arises,  should  come  into  question,  the  court  has 
authority  to  decide  it,  and  there  is  no  relief  for  the  parties,  in 
any  other  judicial  proceeding.  If  the  decision,  in  a  controversy 
between  the  United  States  and  a  citizen,  should  be  against  the 
United  States,  it  is,  of  course,  final  and  conclusive.  If  the  de- 
cision should  be  against  the  citizen,  his  only  relief  is  by  an  ap- 
peal to  his  own  State.  He  is  under  no  obligation  to  submit  to 
federal  decisions  at  all,  except  so  far  only  as  his  own  State  has 
commanded  him  to  do  so ;  and  he  has,  therefore,  a  perfect  right 
to  ask  his  State  whether  her  commands  extend  to  the  particular 


gy  TRUE  NATURE  AND  CHARACTER  OF 

case  or  not.  He  does  not  ask  whether  the  federal  court  has 
interpreted  the  law  correctly  or  not,  but  -whether  or  not  she 
ever  consented  that  congress  should  pass  the  law.  If  congress 
had  such  power,  he  has  no  relief,  for  the  decision  of  the  highest 
federal  court  is  final ;  if  congress  had  not  such  power,  then  he 
is  oppressed  by  the  action  of  a  usurped  authority,  and  has  a 
right  to  look  to  his  own  State  for  redress.  His  State  may  in- 
terpose in  his  favor  or  not,  as  she  may  think  proper.  If  she 
does  not,  then  there  is  an  end  of  the  matter;  if  she  does,  then 
it  is  no  longer  a  judicial  question.  The  question  is  then  be- 
tween new  parties,  who  are  not  bound  by  the  former  decision  ; 
between  a  sovereign  State  and  its  own  agent ;  between  a  State 
and  the  United  States.  As  between  these  parties  the  federal 
tribunals  have  no  jurisdiction,  there  is  no  longer  a  common  um- 
pire to  whom  the  controversy  can  be  referred.  The  State  must 
of  *necessity  judge  for  itself,  by  virtue  of  that  inherent, 
L  -•  sovereign  power  and  authority,  which,  as  to  this  matter, 
it  has  never  surrendered  to  any  other  tribunal.  Its  decision, 
whatever  it  may  be,  is  binding  upon  itself  and  upon  its  own 
people,  and  no  farther. 

A  great  variety  of  cases  are  possible,  some  of  which  are  not 
unlikely  to  arise,  involving  the  true  construction  of  the  Federal 
Constitution,  but  which  could  not  possibly  be  presented  to  the 
courts,  in  a  form  proper  for  their  decision.  The  following  are 
examples. 

By  the  4th  section  of  the  4th  article  it  is  provided  that  "Con- 
gress shall  guaranty  to  every  State  in  the  Union  a  republican 
form  of  government."  What  is  a  republican  form  of  govern- 
ment, and  how  shall  the  question  be  decided?  In  its  very  na- 
ture, it  is  a  political,  and  not  a  judicial  question,  and  it  is  not 
easy  to  imagine  by  what  contrivance  it  could  be  brought  before 
a  court.  Suppose  a  State  should  adopt  a  constitution  not  republi- 
can, in  the  opinion  of  congress ;  what  course  would  be  pursued  ? 
Congress  might,  by  resolution,  determine  that  the  Constitution  was 
not  republican,  and  direct  the  State  to  form  a  new  one.  And  sup- 
pose that  the  State  should  refuse  to  do  so,  on  the  ground  that  it  had 
already  complied  with  the  requisitions  of  the  Federal  Constitu- 
tion in  that  respect  ?  Could  congress  direct  an  issue  to  try  the 
question  at  the  bar  of  the  supreme  court?  This  would,  indeed, 


OUR  FEDERAL   GOVERNMENT.  gg 

be  an  odd  way  of  settling  the  rights  of  nations,  and  determin- 
ing the  extent  of  their  powers !  Besides,  who  would  be  parties 
to  the  issue ;  at  whose  suit  should  the  State  be  summoned  to 
appear  and  answer?  Not  at  that  of  the  United  States,  because 
a  State  cannot  be  sued  by  the  United  States,  in  a  federal  court; 
not  at  that  of  any  other  State,  nor  of  any  individual  citizen, 
because  they  are  not  concerned  in  the  question.  It  is  obvious 
that  the  case  does  not  present  proper  subject  matter  for  judicial 
investigation ;  and  even  if  it  did,  that  no  parties  could  be  found 
authorized  to  present  the  issue. 

Again,  congress  has  authority  "to  provide  for  organizing, 
arming  and  disciplining  the  militia,  and  for  governing  such  part 
of  them  as  may  be  employed  in  the  service  of  the  United 
States ;  reserving  to  the  States,  respectively,  the  appointment 
of  the  officers,  and  the  authority  of  training  the  militia  accord- 
ing to  the  discipline  prescribed  by  congress."  Suppose  that 
congress  should  usurp  the  right  to  appoint  the  militia  officers, 
or  the  State  should  insist  on  training  the  militia  in  their  own 
way,  and  not  "according  to  the  discipline  prescribed  by  con- 
gress." How  could  this  matter  be  brought  before  the  supreme 
court?  and  even  if  properly  brought  there,  how  could  its  sen- 
tence be  executed? 

*Again.  Suppose  that  congress  should  enact  that  all  r*oq-i 
the  slaves  of  the  country  should  immediately  be  free. 
This  is  certainly  not  impossible,  and  I  fear  not  even  improbable, 
although  it  would  be  the  grossest  and  most  palpable  violation  of 
the  constitutional  rights  of  the  slaveholder.  This  would  cer- 
tainly produce  the  most  direct  conflict  between  the  State  and 
Federal  governments.  It  would  involve  a  mere  question  of 
political  power — the  question  whether  the  act  of  congress  for- 
bidding slavery,  or  the  laws  and  constitution  of  the  State  allow- 
ing it,  should  prevail.  And  yet  it  is  manifest  that  it  presents 
no  subject  matter  proper  for  judicial  decision,  and  that  the 
parties  to  it  could  not  be  convened  before  the  supreme  court. 

These  examples  are  sufficient  to  show  that  there  is  a  large 
class  of  "  constitutional  controversies,"  which  could  not  possi- 
bly be  brought  under  the  cognizance  of  any  judicial  tribunal, 
and  still  less  under  that  of  the  federal  courts.  As  to  these 
cases,  therefore,  each  State  must  of  necessity,  for  the  reasons 


gg  TRUE  NATURE  AXV  CHARACTER  OF 

already  stated,  be  its  own  "final  judge  or  interpreter."  They 
involve  the  mere  question  of  political  power,  as  between  the 
State  and  federal  governments ;  and  the  fact,  that  they  are 
clearly  withheld  from  the  jurisdiction  of  the  supreme  court, 
goes  far  to  prove  that  the  States  in  framing  the  Constitution 
did  not  design  to  submit  to  that  court  any  question  of  the  like 
kind,  in  whatever  form  or  between  whatever  parties  it  might 
arise,  except  so  far  only  as  the  parties  themselves  were 
concerned. 

Our  author  himself  does  not  contend  that  the  supreme  court 
is  the  "final  judge  or  interpreter"  in  all  cases  whatsoever; 
he,  of  course,  admits  that  no  court  can  decide  any  question 
which  is  not  susceptible  of  a  proper  form  for  judicial  enquiry. 
But  he  contends  that,  in  all  cases  of  which  the  supreme  court 
can  take  cognizance,  its  decisions  are  final,  and  absolutely 
binding  and  conclusive  in  all  respects,  to  all  purposes,  and 
against  the  States  and  their  people.  It  is  this  sweeping  con- 
clusion which  it  has  been  my  object  to  disprove.  I  can  see  in 
the  federal  courts  nothing  more  than  the  ordinary  functions  of 
the  judiciary  in  every  country.  It  is  their  proper  province  to 
interpret  the  laws ;  but  their  decisions  are  not  binding,  except 
between  the  parties  litigant  and  their  privies.  So  far  as  they 
may  claim  the  force  of  authority,  they  are  not  conclusive,  even 
upon  those  who  pronounce  them,  and  certainly  are  not  so 
beyond  the  sphere  of  their  own  government.  Although  the 
judiciary  may,  and  frequently  do,  enlarge  or  contract  the 
powers  of  their  own  governments,  as  generally  understood,  yet 
they  can  never  enlarge  or  contract  those  of  other  governments, 
for  the  simple  reason,  that  other  governments  are  not  bound 
f*90 1  ^  tneir  *decisions.  And  so  in  our  own  systems.  There 
is  no  case  in  which  a  judicial  question  can  arise,  before 
a  federal  court,  between  a  State  and  the  federal  government. 
Upon  what  principle,  then,  are  the  States  bound  by  the  deci- 
sions of  the  federal  judiciary  ?  Upon  no  principle,  certainly, 
except  that,  as  to  certain  subjects,  they  have  agreed  to  be  so 
bound.  But  this  agreement  they  made  in  their  character  of 
sovereign  States,  not  with  the  federal  government,  but  with  one 
another.  As  sovereign  States  they  alone  are  to  determine  the 
nature  and  extent  of  that  agreement,  and,  of  course,  they  alone 


OUR  FEDERAL   GOVERNMENT.  90 

are  to  determine  whether  or  not  they  have  given  the  federal 
courts  authority  to  bind  them  in  any  given  case.  This  prin- 
ciple has  frequently  been  asserted  by  the  States,  and  always 
successfully.* 

But  these  mere  technical  rules,  upon  which  we  have  hith- 
erto considered  the  subject,  are  altogether  unworthy  of  its 
importance,  and  far  beneath  its  dignity.  Sovereign  nations  do 
not  ask  their  judges  what  are  their  rights,  nor  do  they  limit 
their  powers  by  judicial  precedents.  Still  less  do  they  entrust 
these  important  subjects  to  judicial  tribunals  not  their  own,  and, 
least  of  all,  to  the  tribunals  of  that  power  against  which  their 
own  power  is  asserted.  It  would  have  been  a  gross  inconsis- 
tency in  the  States  of  our  Union  to  do  this,  since  they  have 
shown,  in  every  part  of  their  compact  with  one  another,  the 
most  jealous  care  of  their  separate  sovereignty  and  independ- 
ence. It  is  true  they  have  agreed  to  be  bound  by  the  decisions 
of  federal  tribunals  in  certain  specified  cases,  and  it  is  not  to 
be  doubted  that,  so  long  as  they  desire  the  continuance  of  their 
present  union,  they  will  feel  themselves  bound,  in  every  case 
which  comes  plainly  within  their  agreement.  There  is  no 
necessity  to  call  in  the  aid  of  the  supreme  court  to  ascertain  to 
what  subjects,  and  how  far,  that  agreement  extends.  So  far  as 
it  is  plain,  it  will  be  strictly  observed,  as  national  faith  and 
honor  require ;  there  is  no  other  guarantee.  So  far  as  it  is 
not  plain,  or  so  far  as  it  may  be  the  will  and  pleasure  of  any 
State  to  deny  or  to  resist  it,  the  utter  impotency  of  courts  of 
justice  to  settle  the  difficulty  will  be  manifested  beyond  all 
doubt.  They  will  be  admonished  of  their  responsibility  to  the 
power  which  created  them.  The  States  created  them.  They 
are  but  an  emanation  of  the  sovereign  power  of  the  States,  and 
can  neither  limit  nor  control  that  power. 

Ordinarily,  the  judiciary  are  the  proper  interpreters  of  the 
powers  of  government,  but  they  interpret  in  subordination  to 
the  power  which  created  them.     In  governments  established  by 
an  aggregate  people,  *such  as  are  those  of  the  States, 
a  proper  corrective  is  always  found  in  the  people  them-  «- 
selves.     If  the  judicial  interpretation  confer  too  much  or  too 
little  power  on  the  government,  a  ready  remedy  is  found  in  an 
*  Hunter  and  Martin,  Cohen  vs.  State  of  Virginia,  and  other  cases. 


gi  TRUE  NATURE  AND  CHARACTER  OF 

amendment  of  the  Constitution.  But  in  our  federal  system  the 
evil  is  without  remedy,  if  the  federal  courts  be  allowed  to  fix 
the  limits  of  federal  power  with  reference  to  those  of  the 
States.  It  would  place  every  thing  in  the  State  governments, 
except  their  mere  existence,  at  the  mercy  of  a  single  depart- 
ment of  the  federal  government.  The  maxim,  stare  decisis,  is 
not  always  adhered  to  by  our  courts ;  their  own  decisions  are 
not  held  to  be  absolutely  binding  upon  themselves.  They  may 
establish  a  right  to-day  and  unsettle  it  to-morrow.  A  decision 
of  the  supreme  court  might  arrest  a  State  in  the  full  exercise  of 
an.important  and  necessary  power,  which  a  previous  decision  of 
the  same  court  had  ascertained  that  she  possessed.  Thus  the 
powers  of  the  State  governments,  as  to  many  important  objects, 
might  be  kept  indeterminate  and  constantly  liable  to  change,  so 
that  they  would  lose  their  efficiency,  and  forfeit  all  title  to  con- 
fidence and  respect.  It  is  true,  that  in  this  case,  too,  there  is 
a  possible  corrective  in  the  power  to  amend  the  Constitution. 
But  that  power  is  not  with  the  aggrieved  State  alone  ;  it  could 
be  exerted  only  in  connexion  with  other  States,  whose  aid  she 
might  not  be  able  to  command.  And  even  if  she  could  com- 
mand it,  the  process  would  be  too  slow  to  afford  effectual  relief. 
It  is  impossible  to  imagine  that  any  free  and  sovereign  State 
ever  designed  to  surrender  her  power  of  self-protection  in  a 
case  like  this,  or  ever  meant  to  authorize  any  other  power  to 
reduce  her  to  a  situation  so  helpless  and  contemptible.* 

*  This  want  of  uniformity  and  fixedness,  in  the  decisions  of  courts,  renders 
the  supreme  court  the  most  unfit  umpire  that  could  be  selected,  between  the 
federal  government  and  the  States,  on  questions  involving  their  respective 
rights  and  powers.  Suppose  that  the  United  States  should  resolve  to  cut  a 
canal  through  the  territory  of  Virginia ;  and  being  resisted,  the  supreme  court 
should  decide  that  they  had  a  right  to  do  so.  Suppose  that,  when  the  work 
was  completed,  a  similar  attempt  should  be  made  in  Massachusetts  ;  and  being 
resisted,  the  same  court  should  decide  that  they  had  no  right  to  do  so.  The 
effect  would  be  that  the  United  States  would  possess  a  right  in  one  State, 
which  it  did  not  possess  in  another.  Suppose  that  Virginia  should  impose  a 
tax  on  the  arsenals,  dock-yards,  &c.  of  the  United  States  within  her  territory, 
and  that,  in  a  suit  to  determine  the  right,  the  supreme  court  should  decide  in 
favor  of  it.  Suppose  that  a  like  attempt  should  be  made  by  Massachusetts, 
and,  upon  a  similar  appeal  to  that  court,  it  should  decide  against  it;  Virginia 
would  enjoy  aright  in  reference  to  the  United  States,  which  would  be  denied 
to  Massachusetts.  Other  cases  may  be  supposed,  involving  like  consequences, 
and  showing  the  absurdity  of  submitting  to  courts  of  justice  the  decision  of 


OUR  FEDERAL   GOVERNMENT.  91 

Yielding,  therefore,  to  the  supreme  court  all  the  "'juris- 
diction and  authority  which  properly  belongs  to  it,  we  *• 
cannot  safely  or  wisely  repose  in  it  the  vast  trust  of  ascertain- 
ing, defining  or  limiting  the  sovereign  powers  of  the  States. 

Let  us  now  follow  the  author  in  the  enquiry,  by  what  rules 
shall  the  Constitution  be  interpreted  ?  Many  of  those  which 
he  has  given  are  merely  such  as  we  apply  to  every  instrument, 
and  they  do  not,  therefore,  require  any  particular  examination. 
The  principal  one,  and  that  from  which  he  deduces  many  others 
as  consequences,  is  this :  "It  is  to  be  construed  as  a  frame  or 
fundamental  law  of  government,  established  by  the  people  of 
the  United  States,  according  to  their  own  free  pleasure  and 
sovereign  will.  In  this  respect,  it  is  in  no  wise  distinguishable 
from  the  constitutions  of  the  State  governments."  That  our 
Constitution  is  "  a  frame  of  government "  will  scarcely  be 
denied  by  any  one,  and  this,  whether  it  be  in  its  nature  feder- 
ative or  consolidated.  It  is  also,  as  is  every  other  constitution 
of  government,  "  a  fundamental  law."  It  is  the  acknowledged 
basis  of  all  federal  power  and  authority,  the  sole  chart  by 
which  federal  officers  are  to  direct  their  course.  But  all  this 
leaves  the  enquiry  still  open,  what  is  this  fundamental  law, 
what  is  the  course  indicated  by  this  chart  of  federal  power,  and 
how  is  it  to  be  ascertained  ?  The  author  seems  to  suppose  that 
a  full  answer  to  this  question  may  be  found  in  the  fact,  that 
this  frame  or  fundamental  law  of  government  was  established 
by  "  the  people  of  the  United  States,  according  to  their  free 
pleasure  and  sovereign  will."  If  the  fact  were  really  so,  it 
would  undoubtedly  exert  an  important  influence,  and  would  go 
far  to  justify  his  construction  of  the  Constitution.  We  here 
discern  the  usefulness  and  necessity  of  that  historical  enquiry, 
which  has  just  been  finished.  From  that  enquiry  we  learn, 
distinctly  and  without  doubt,  that  the  Constitution  was  not 
established  by  "the  people  of  the  United  States,"  and  conse- 

controversies  between  governments,  involving  the  extent   and  nature  of  their 
powers. 

I  know  that  the  decisions  of  the  supreme  court  on  constitutional  questions 
have  been  very  consistent  and  uniform ;  but  that  affords  no  proof  that  they 
will  be  so  through  all  time  to  come.  It  is  enough  for  the  purposes  of  the 
present  argumeut,  that  they  may  be  otherwise. 


02  TRUE  NATURE  AND  CHARACTER  OP 

quently,  that  it  does  not  resemble  in  that  respect  the  constitu- 
tions of  the  States.  There  is  no  such  analogy  between  them, 
as  will  presently  be  shown,  as  to  require  that  they  should  be 
construed  by  the  same  rules.  The  Constitution  of  the  United 
States  is  to  be  considered  as  a  compact  or  confederation  between 
free,  independent  and  sovereign  States,  and  is  *to  be  con- 
-"  strued  as  such,  in  all  cases  where  its  language  is  doubt- 
ful. This  is  the  leading  and  fundamental  rule,  from  "which  the 
following  may  be  deduced  as  consequences 

It  is  to  be  construed  strictly.  Our  author  supposes  that  the 
Constitution  of  the  United  States  ought  to  "receive  as  favora- 
ble a  construction  as  those  of  the  States;"  that  it  is  to  be 
liberally  construed;  that  doubtful  words  aie  to  be  taken  most 
strongly  in  favor  of  the  powers  of  the  federal  government ;  and 
that  there  is  "no  solid  objection  to  implied  powers."  All  these 
are  but  inferences  from  the  great  rule  which  he  first  laid  down, 
to  wit,  that  the  Constitution  is  to  be  considered  as  a  frame  of 
government,  established  by  the  people  of  the  United  States. 
As  that  rule  cannot  apply,  because  the  fact  on  which  it  is 
founded  is  not  true,  it  would  seem  to  follow,  as  a  necessary  con- 
sequence, that  the  inferences  deduced  from  it  cannot  be  allowed. 
Nevertheless,  they  shall  receive  a  more  particular  consideration 
under  the  present  enquiry. 

According  to  the  principles  of  all  our  institutions,  sovereignty 
does  not  reside  in  any  government  whatever,  neither  State  nor 
federal.  Government  is  regarded  merely  as  the  agent  of  those 
who  create  it,  and  subject  in  all  respects  to  their  will.  In  the 
States,  the  sovereign  power  is  in  the  people  of  the  States  re- 
spectively; and  the  sovereign  power  of  the  United  States  would, 
for  the  same  reason,  be  in  "the  people  of  the  United  States," 
if  there  were  any  such  people,  known  as  a  single  nation,  and 
the  framers  of  the  federal  government.  We  have  already  seen, 
however,  that  there  are  no  such  people,  in  a  strict  political 
sense,  and  that  no  such  people  had  any  agency  in  the  formation 
of  our  Constitution,  but  that  it  was  formed  by  the  States,  em- 
phatically as  such.  It  would  be  absurd,  according  to  all  prin- 
ciples received  and  acknowledged  among  us,  to  say  that  the 
sovereign  power  is  in  one  party,  and  the  power  which  creates 
the  government  is  in  another.  The  true  sovereignty  of  the 


OUR  FEDERAL   GOVERNMENT.  93 

United  States,  therefore,  is  in  the  States,  and  not  in  the  people 
of  the  United  States,  nor  in  the  federal  government.  That 
government  is  but  the  agent  through  whom  a  portion  of  this 
sovereign  power  is  exerted ;  possessing  no  sovereignty  itself, 
and  exerting  no  power,  except  such  only  as  its  constituents  have 
conferred  on  it.  In  ascertaining  what  these  powers  are,  it  is 
obviously  proper  that  we  should  look  only  to  the  grant  from 
which  they  are  derived.  The  agent  can  claim  nothing  for  itself, 
and  on  its  own  account.  The  Constitution  is  a  compact,  and 
the  parties  to  it  are  each  State,  with  each  and  every  other  State. 
The  federal  government  is  not  a  party,  but  is  the  mere  creature 
of  the  *agreement  between  the  States  as  parties.  Each 
State  is  both  grantor  and  grantee,  receiving  from  each  *- 
and  all  the  other  States  precisely  what,  in  its  turn,  it  concedes 
to  each  and  all  of  them.  The  rule,  therefore,  that  the  words 
are  to  be  taken  most  strongly  in  favor  of  the  grantee,  cannot 
apply,  because,  as  each  State  is  both  grantor  and  grantee,  it 
would  give  exactly  as  much  as  it  would  take  away.  The  only 
mode,  therefore,  by  which  we  may  be  certain  to  do  no  injustice 
to  the  intentions  of  the  parties,  is  by  taking  their  words  as  the 
true  exponents  of  their  meaning. 

Our  author  thinks,  however,  that  a  more  liberal  rule  ought  to 
be  adopted,  in  construing  the  Constitution  of  the  United  States, 
because  "  the  grant  enures  solely  and  exclusively  for  the  benefit 
of  the  grantor  himself;"  and  therefore  he  supposes  that  "no 
one  would  deny  the  propriety  of  giving  to  the  words  of  the  grant 
a  benign  and  liberal  interpretation."  Admit  that  it  is  so,  and 
it  would  seem  to  follow  that  "  the  benefit  of  the  grantor"  re- 
quires that  we  should  take  from  h-im  as  little  as  possible,  and 
that  an  "interpretation  of  the  words  of  the  grant"  would  not  be 
"benign  and  liberal"  as  to  him,  if  it  deprived  him  of  any  more 
of  his  rights  and  powers,  than  his  own  words  prove  that  he  in- 
tended to  relinquish.  It  is  evident  that  this  remark  of  the 
author  proceeds  upon  the  leading  idea,  that  the  people  of  the 
United  States  are  the  only  party  to  the  contract ;  an  idea 
which,  we  have  already  seen,  can  by  no  means  be  justified  or 
allowed.  The  States  are  parties  ;  each  agreeing  with  each,  and 
all  the  rest,  that  it  will  exercise,  through  a  common  agent,  pre- 
cisely so  much  of  its  sovereign  rights  and  powers,  as  will,  in  its 


g^  TRUE  NATURE  AND  CHARACTER  OF 

own  opinion,  be  beneficial  to  itself,  when  so  exercised.  The 
grant  "enures  to  the  sole  and  exclusive  benefit  of  the  grantor ;" 
and  who  but  the  grantor  himself  shall  determine  what  benefit  he 
had  in  view,  and  how  far  the  grant  shall  extend,  in  order  to 
secure  it  ?  This  he  has  done,  in  the  case  before  us,  by  the  very 
terms  of  the  grant.  If  you  hold  him  bound  by  any  thing  be- 
yond those  terms,  you  enable  others  to  decide  this  matter  for 
him,  and  may  thus  virtually  abrogate  his  contract,  and  substi- 
tute another  in  its  place. 

I  certainly  do  not  mean  to  say,  that  in  construing  the  Con- 
stitution, we  should  at  all  times  confine  ourselves  to  its  strict 
letter.  This  would,  indeed,  be  sticking  in  the  bark,  to  the  worst 
possible  purpose.  Many  powers  are  granted  by  that  instrument, 
which  are  not  included  within  its  express  terms,  literally 
taken,  but  which  are,  nevertheless,  within  their  obvious  mean- 
ing. The  strict  construction  for  which  I  contend,  applies  to  the 
intention  of  the  framers  of  the  Constitution ;  and  this  may  or 
may  not  require  a  strict  construction  of  their  words. 

*There  is  no  fair  analogy  as  to  this  matter  between 
J  the  Federal  Constitution  and  those  of  the  States,  al- 
though the  author  broadly  asserts  that  they  are  not  "  distin- 
guishable in  this  respect ;"  and  this  will  sufficiently  appear  from 
the  following  considerations : 

1.  The  entire  sovereignty  of  each  State  is  in  the  people 
thereof.     When   they  form   for   themselves  a  constitution  of 
government,  they  part  with  no  portion  of  their  sovereignty,  but 
merely  determine  what  portion  thereof  shall  lie  dormant,  what 
portion  they  will  exercise,  and  in  what  modes  and  by  what 
agencies  they  will  exercise  it.     There  is  but  one  party  to  such 
a  government,  to  wit,  the  people  of  the  State.    Whatever  power 
their  government  may  possess,  it  is  still  the  power  of  the  peo- 
ple ;    and  their  sovereignty  remains  the  same.     So  far,  there- 
fore, there  is  "no  solid  objection  to  implied  powers"  in  a  State 

'constitution ;  because,  by  employing  power  in  the  government, 
you  take  no  power  from  those  who  made  the  government. 

2.  As  government  is  the  agent  and  representative  of  the 
sovereign  power  of  the  people,  the  presumption  is,  that  they  in- 
tend to  make  it  the  agent  and  representative  of  all  their  power. 
In  every  frame  of  limited  government,  the  people  deny  to  them- 


OUR  FEDERAL   GOVERNMENT.  95 

selves  the  exercise  of  some  portion  of  their  rights  and  powers, 
but  the  larger  portion  never  lies  thus  dormant,  In  this  case, 
therefore,  (viz. :  of  a  government  established  by  an  aggregate 
people,)  the  question  naturally  is,  not  what  powers  are  granted, 
but  what  are  denied;  and  the  rule  of  strict  construction,  if 
applied  at  all,  should  be  applied  only  to  the  powers  denied. 
This  would  have  the  effect  of  enlarging  the  powers  of  govern- 
ment, by  limiting  the  restraints  imposed  on  it. 

3.  As  it  is  fair  to  presume  that  a  people  absolutely  sovereign, 
and  having  an  unlimited  right  to  govern  themselves  as  they 
please,  would  not  deny  to  themselves  the  exercise  of  any  power 
necessary  to  their  prosperity  and  happiness,  we  should  admit  all 
fair  and  reasonable  implications  in  favor  of  the  government,  be- 
cause, otherwise,  some  power  necessary  to  the  public  weal,  might 
be  dormant  and  useless. 

In  these  respects,  there  is  no  just  analogy  between  the  State 
constitutions  and  that  of  the  United  States. 

In  the  first  place,  the  Constitution  of  the  United  States  is 
not  a  frame  of  government  to  which  there  is  but  one  party. 
The  States  are  parties,  each  stipulating  and  agreeing  with  each 
and  all  the  rest.  Their  agreement  is,  that  a  certain  portion  of 
that  power  which  each  is  authorized  to  exercise  within  its  own 
limits  shall  be  exercised  by  their  common  agent,  within  the 
limits  of  all  of  them.  This  is  not  the  separate  power  of  each, 
but  the  joint  power  of  all.  In  proportion,  *therefore,  as 
you  increase  the  powers  of  the  federal  government,  you  *- 
necessarily  detract  from  the  separate  powers  of  the  States.  We 
are  not  to  presume  that  a  sovereign  people  mean  to  surrender 
any  of  their  powers ;  still  less  should  we  presume  that  they 
mean  to  surrender  them,  to  be  exerted  over  themselves,  ~by  a 
different  sovereignty.  In  this  respect,  then,  every  reasonable 
implication  is  against  the  federal  government. 

In  the  second  place,  the  Constitution  of  the  United  States  is 
not  the  primary  social  relation  of  those  who  formed  it.  The 
State  governments  were  already  organized,  and  were  adequate 
to  all  the  purposes  of  their  municipal  concerns.  The  federal 
government  was  established  only  for  such  purposes  as  the  State 
government  could  not  answer,  to  wit,  the  common  purposes  of 
all  the  States.  "Whether,  therefore,  the  powers  of  that  govern- 


gg  TRUE  NATURE  AND  CHARACTER  OF 

ment  be  greater  or  less,  the  whole  power  of  the  States,  (or  so 
much  thereof  as  they  design  to  exercise  at  all,)  is  represented, 
either  in  the  federal  government  or  in  their  own.  In  this  re- 
spect, therefore,  there  is  no  necessity  to  imply  power  in  the 
federal  government. 

In  the  third  place,  whatever  power  the  States  have  not  dele- 
gated to  the  federal  government,  they  have  reserved  to  them- 
selves. Every  useful  faculty  of  government  is  found  either  in 
the  one  or  the  other.  Whatever  the  federal  government  cannot 
do  for  all  the  States,  each  State  can  do  for  itself,  subject  only 
to  the  restraints  of  its  own  constitution.  No  power,  therefore, 
is  dormant  and  useless,  except  so  far  only  as  the  States  volun- 
tarily decline  to  exert  it.  In  this  respect,  also,  there  is  no 
necessity  to  imply  power  in  the  federal  government. 

In  all  these  particulars  the  Federal  Constitution  is  clearly 
"distinguishable  from  the  constitutions  of  the  State  govern- 
ments." The  views  just  presented  support  this  obvious  dis- 
tinction, that  in  the  State  constitutions  every  power  is  granted 
which  is  not  denied ;  in  the  Federal  Constitution,  every  power 
is  denied  which  is  not  granted.  There  are  yet  other  views  of 
the  subject,  which  lead  us  to  the  same  conclusion. 

The  objects  for  which  the  federal  government  was  established, 
are  by  no  means  equal  in  importance  to  those  of  the  State  con- 
stitutions. It  is  difficult  to  imagine  any  necessity  for  a  federal 
government  at  all,  except  what  springs  from  the  relations  of  the 
States  to  foreign  nations.  A  union  among  them  is  undoubtedly 
valuable  for  many  purposes.  It  renders  them  stronger  and 
more  able  to  resist  their  enemies ;  it  attracts  to  them  the  re- 
spect of  other  countries,  and  gives  them  advantages  in  the 
formation  of  foreign  connexions ;  it  facilitates  all  the  operations 
F*Q71  *°^  war'  °f  commerce,  and  of  foreign  diplomacy.  But 
J  these  objects,  although  highly  important,  are  not  so  im- 
portant as  those  great  rights  which  are  secured  to  us  by  the 
State  constitutions.  The  States  might  singly  protect  them- 
selves ;  singly  form  their  foreign  connexions,  and  singly  regu- 
late their  commerce  ;  not  so  effectually,  it  is  true,  but  effectually 
enough  to  afford  reasonable  security  to  their  independence  and 
general  prosperity.  In  addition  to  all  this,  we  rely  exclusively 
on  the  State  governments  for  the  security  of  the  great  rights  of 


OUR  FEDERAL  GOVERNMENT.  97 

life,  liberty  and  property.  All  the  valuable  and  interesting  re- 
lations of  the  social  state  spring  from  them.  They  give  validity 
to  the  marriage  tie ;  they  prescribe  the  limits  of  parental  au- 
thority ;  they  enforce  filial  duty  and  obedience  ;  they  limit  the 
power  of  the  master,  and  exact  the  proper  duties  of  the  servant. 
Their  power  pervades  all  the  ranks  of  society,  restraining  the 
strong,  protecting  the  weak,  succoring  the  poor,  and  lifting  up 
the  fallen  and  helpless.  They  secure  to  all  persons  an  impar- 
tial administration  of  public  justice.  In  all  the  daily  business 
of  life,  we  act  under  the  protection  and  guidance  of  the  State 
governments.  They  regulate  and  secure  our  rights  of  property ; 
they  enforce  our  contracts  and  preside  over  the  peace  and  safety 
of  our  firesides.  There  is  nothing  dear  to  our  feelings  or  valua- 
ble in  our  social  condition,  for  which  we  are  not  indebted  to 
their  protecting  and  benignant  action.  Take  away  the  federal 
government  altogether,  and  still  we  are  free,  our  rights  are  still 
protected,  our  business  is  still  regulated,  and  we  still  enjoy  all 
the  other  advantages  and  blessings  of  established  and  well  or- 
ganized government.  But  if  you  take  away  the  State  govern- 
ments, what  have  you  left  ?  A  federal  government,  which  can 
neither  regulate  your  industry,  secure  your  property,  nor  pro- 
tect your  person  !  Surely  there  can  be  no  just  reason  for  steal- 
ing, by  liberal  constructions  and  implications,  from  these  bene- 
ficent State  governments,  any  portion  of  their  power,  in  order 
to  confer  it  on  another  government,  which,  from  its  very 
organization,  cannot  possibly  exert  it  for  equally  useful  pur- 
poses. A  strict  construction  of  the  Constitution  will  give  to 
the  federal  government  all  the  power  which  it  can  beneficially 
exert,  all  that  it  is  necessary  for  it  to  possess,  and  all  that  its 
framers  ever  designed  to  confer  on  it. 

To  these  views  of  the  subject  we  may  add,  that  there  is  a  na- 
tural and  necessary  tendency  in  the  federal  government  to 
encroach  on  the  rights  and  powers  of  the  States.  As  the  re- 
presentative of  all  the  States,  it  affords,  in  its  organization,  an 
opportunity  for  those  combinations  by  which  a  majority  of  the 
States  may  oppress  the  minority,  against  the  spirit  or  even  the 
letter  of  the  Constitution.  There  is  no  *danger  that  .-  ^q^  -, 
the  federal  government  will  ever  be  too  weak.  Its 
means  of  aggrandizing  itself  are  so  numerous,  and  its  tempta- 


98 


TRUE  NATURE  AND  CHARACTER  OF 


tions  to  do  so  are  so  strong,  that  there  is  not  the  least  necessity 
to  imply  any  new  power  in  its  favor.  The  States,  on  the  con- 
trary, have  no  motive  to  encroach  on  the  federal  government, 
and  no  power  to  do  so,  even  if  they  desired  it.  In  order,  there- 
fore, to  preserve  the  just  balance  between  them,  we  should  in- 
cline, in  every  doubtful  case,  in  favor  of  the  States ;  confident 
that  the  federal  government  has  always  the  inclination,  and 
always  the  means,  to  maintain  itself  in  all  its  just  powers. 

The  Constitution  itself  suggests  that  it  should  be  strictly  and 
not  liberally  construed.  The  tenth  amendment  provides,  that 
"  the  powers  not  delegated  to  the  United  States,  nor  prohibited 
to  the  States,  by  the  Constitution,  are  reserved  to  the  States  or 
the  people."  There  was  a  corresponding  provision  in  the  arti- 
cles of  confederation,  which  doubtless  suggested  this  amendment. 
It  was  considered  necessary,  in  order  to  prevent  that  latitude  of 
construction  which  was  contended  for  by  one  of  the  great  poli- 
tical parties  of  the  country,  and  much  dreaded  and  strenuously 
opposed  by  the  other.  In  the  articles  of  confederation  all 
"  rights,  jurisdictions  and  powers"  are  reserved,  except  only 
such  as  are  expressly  delegated ;  but  in  the  Constitution,  the 
word  "  expressly"  is  omitted.  Our  author  infers  from  this  fact, 
that  it  was  the  intention  of  the  framers  of  the  tenth  amendment 
to  leave  "  the  question,  whether  the  particular  power  which  is 
the  subject  of  contest  has  been  delegated  to  one  government  or 
prohibited  to  the  other,  to  depend  upon  a  fair  construction  of  the 
whole  instrument;"  doubtless  intending  by  the  word  "fair,"  a 
construction  as  liberal  as  would  be  applied  to  any  other  frame 
of  government.  This  argument  is  much  relied  on,  and  is  cer- 
tainly not  without  plausibility,  but  it  loses  all  its  force,  if  the 
omission  can  be  otherwise  satisfactorily  accounted  for.  The 
Constitution  provides  that  congress  shall  have  power  to  pass  all 
laws  which  shall  be  necessary  and  proper  for  carrying  into  effect 
the  various  powers  which  it  grants.  If  this  clause  confers  no 
additional  faculty  of  any  sort,  it  is  wholly  useless  and  out  of 
place;  the  fact  that  it  is  found  in  the  Constitution  is  sufficient 
proof  that  some  effect  was  intended  to  be  given  to  it.  It  was 
contemplated  that,  in  executing  the  powers  expressly  granted, 
it  might  be  necessary  to  exert  some  power  not  enumerated,  and 
as  to  which  some  doubt  might,  for  that  reason,  be  entertained. 


OUR  FEDERAL   GOVERNMENT.  98 

For  example,  the  power  to  provide  a  navy  is  not,  in  itself,  the 
power  to  build  a  dry  dock ;  but,  as  dry  docks  are  necessary  and 
proper  means  for  providing  a  navy,  congress  shall  have  power 
to  authorize  the  construction  of  them.  But  if  *the 
word  "  expressly"  had  been  used  in  the  tenth  amend-  L 
ment,  it  would  have  created  a  very  rational  and  strong  doubt 
of  this.  There  would  have  been,  at  least,  an  apparent  repug- 
nance betAveen  the  two  provisions  of  the  Constitution  ;  not  a  real 
one,  I  admit,  but  still  sufficiently  probable  to  give  rise  to  em- 
barrassing doubts  and  disputes.  Hence  the  necessity  of  omit- 
ting the  word  "  expressly,"  in  the  tenth  amendment.  It  left 
free  from  doubt  and  unaffected  the  power  of  congress  to  provide 
the  necessary  and  proper  means  of  executing  the  granted  powers, 
while  it  denied  to  the  federal  government  every  power  which 
was  not  granted.  The  same  result  was  doubtless  expected  from 
this  amendment  of  the  Constitution,  which  was  expected  from 
the  corresponding  provision  in  the  articles  of  confederation ;  and 
the  difference  in  the  terms  employed  is  but  the  necessary  con- 
sequence of  the  difference  in  other  provisions  of  the  two  systems. 
Strictly  speaking,  then,  the  Constitution  allows  no  implication 
in  favor  of  the  federal  government,  in  any  case  whatever. 
Every  power  which  it  can  properly  exert  is  a  granted  power. 
All  these  are  enumerated  in  the  Constitution,  and  nothing  can 
be  constitutionally  done,  beyond  that  enumeration,  unless  it  be 
done  as  a  means  of  executing  some  one  of  the  enumerated  powers. 
These  means  are  granted,  not  implied ;  they  are  given  as  the 
necessary  incidents  of  the  power  itself,  or,  more  properly  speak- 
ing, as  component  parts  of  it,  because  the  power  would  be  im- 
perfect, nugatory  and  useless,  without  them.  It  is  true,  that  in 
regard  to  these  incidental  powers,  some  discretion  must,  of  ne- 
cessity, be  left  with  the  government.  But  there  is  at  the  same 
time,  a  peculiar  necessity  that  a  strict  construction  should  be 
applied  to  them ;  because  that  is  the  precise  point  at  which  the 
government  is  most  apt  to  encroach.  Without  some  strict,  de- 
finite and  fixed  rules  upon  the  subject,  it  would  be  left  under 
no  restraint,  except  what  is  imposed  by  its  own  wisdom,  integ- 
rity and  good  faith.  In  proportion  as  a  power  is  liable  to  be 
abused,  should  we  increase  and  strengthen  the  checks  upon  it. 
And  this  brings  us  to  the  enquiry,  what  are  these  incidental 


gg  TRUE  NATURE  AND  CHARACTER  OF 

powers,   and  by   what  rules  are  they  to  be  ascertained  and 
defined  ? 

The  only  source  from  which  these  incidental  powers  are  de- 
rived is  that  clause  of  the  Constitution  which  confers  on  congress 
the  power  "  to  make  all  laws  which  are  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof."  The 
true  character  of  this  clause  cannot  be  better  given  than  in  the 
words  of  the  author  himself:  "It  neither  ^enlarges 
J  any  power  specifically  granted,  nor  is  it  a  grant  of  any 
new  power  to  congress.  But  it  is  merely  a  declaration,  for  the 
removal  of  all  uncertainty,  that  the  means  of  carrying  into  exe- 
cution, those  otherwise  granted,  are  included  in  the  grant." 
His  general  reasoning  upon  the  subject  is  very  lucid,  and,  to  a 
certain  extent,  correct  and  convincing.  He  contends  that  the 
word  "necessary  "  is  not  to  be  taken  in  its  restricted  sense,  as 
importing  absolute  and  indispensable  necessity,  but  is  to  be 
understood  in  the  sense  of  "convenient,"  "useful,"  "requi- 
site;" as  being  such  that,  without  them,  "the  grant  would  be 
nugatory."  The  dangerous  latitude  implied  by  this  construc- 
tion, he  thinks  sufficiently  restrained  by  the  additional  word 
"  proper,"  which  implies  that  the  means  shall  be  "  constitu- 
tional and  bonafide  appropriate  to  the  end."  In  all  this  he  is 
undoubtedly  correct ;  but  the  conclusion  which  he  draws  from 
it,  cannot  be  so  readily  admitted.  "If,"  says  he,  "there  be 
any  general  principle  which  is  inherent  in  the  very  definition  of 
government,  and  essential  to  every  step  of  the  progress  to  be 
made  by  that  of  the  United  States,  it  is  that  every  power  vested 
in  the  government  is,  in  its  nature,  sovereign,  and  includes,  by 
force  of  the  term,  a  right  to  employ  all  the  means  requisite, 
and  fairly  applicable  to  the  attainment  of  the  end  of  such 
power,  unless  they  are  excepted  in  the  Constitution,  or  are 
immoral,  or  are  contrary  to  the  essential  objects  of  political 
society."  This  is  by  no  means  a  legitimate  conclusion  from 
his  own  fair  and  forcible  reasoning.  The  doctrine  here  is,  in 
effect,  that  the  federal  government  is  absolutely  unrestricted  in 
the  selection  and  use  of  the  means  of  executing  its  own  powers, 
except  only  so  far  as  those  means  are  excepted  in  the  Constitu- 


OUR  FEDERAL  GOVERNMENT.  100 

tion.  Whether  or  not  they  are  "  requisite,"  "  fairly  applicable 
to  the  attainment  of  the  end  of  such  power,"  "immoral  or  con- 
trary to  the  essential  objects  of  political  society,"  all  these  are 
questions  which  the  government  alone  can  decide,  and,  of 
course,  as  their  own  judgment  and  discretion  are  their  only 
rule,  they  are  under  no  sort  of  limitation  or  control  in  these 
respects.  The  standards  of  political  morality,  of  public  con- 
venience and  necessity,  and  of  conformity  to  the  essential 
objects  of  society,  are  quite  too  fluctuating  and  indeterminate 
to  be  relied  on,  by  a  free  people,  as  checks  upon  the  power  of 
their  rulers.  The  only  real  restriction,  then,  which  the  author 
proposes  in  the  above  passage,  is  that  which  may  be  found  in 
the  fact,  that  the  proposed  means  are  ll  excepted"  in  the  Con- 
stitution ;  and  this  is  directly  contrary  to  the  letter  and  spirit 
of  that  instrument.  The  federal  government  possesses  no 
power  which  is  not  "  delegated  ;"  "  the  powers  not  delegated  to 
the  United  States  by  the  Constitution,  nor  prohibited  by 
*it  to  the  States,  are  reserved  to  the  States  respectively,  L 
or  to  the  people."  The  author's  idea  is,  that  every  thing  is 
granted  which  is  not  excepted ;  whereas,  the  language  of  the 
tenth  amendment  is  express,  that  every  thing  is  excepted  which 
is  not  granted.  If  the  word  "  excepted  "  is  to  be  understood 
in  this  sense,  the  author's  idea  is  correct ;  but  this  does  not 
accord  with  the  general  scope  of  his  opinions  and  reasoning. 
He  approaches  much  nearer  to  the  true  rule  in  the  following 
passage.  "  Let  the  end  be  legitimate ;  let  it  be  within  the 
scope  of  the  Constitution ;  and  all  means  which  are  appropri- 
ate, which  are  plainly  adapted  to  the  end,  and  which  are  not 
prohibited,  but  are  consistent  with  the  letter  and  spirit  of  the 
instrument,  are  constitutional."  The  words  in  italics,  are  all 
important  in  the  matter,  and  give  to  the  passage  a  meaning 
wholly  different  from  that  of  the  passage  first  quoted. 

The  author's  error  is  equally  great,  and  far  more  dangerous, 
in  supposing  that  the  means  of  executing  its  powers  are  con- 
ferred on  the  government.  The  general  proposition  is  true,  as 
he  has  stated  it ;  but  it  is  not  true  in  the  application  which  he 
has  made  of  it  to  our  government.  He  regards  the  tenth 
amendment  as  altogether  unnecessary,  and  tells  us,  in  express 
terms,  that  the  powers  of  the  government  would  be  exactly  the 


TRUE  NATURE  AND  CHARACTER  OF 

same  with  or  without  it.  This  is  a  great  and  obvious  mistake. 
The  tenth  amendment  was  wisely  incorporated  into  the  Consti- 
tution, for  the  express  purpose  of  denying  to  the  government 
that  unbounded  discretion,  in  the  selection  and  use  of  its  means, 
for  which  he  contends.  The  power  to  make  all  laws  necessary 
and  proper  for  carrying  into  effect  the  granted  powers  is  con- 
ferred on  congress  alone  ;  it  is  exclusively  a  legislative  power. 
So  far,  therefore,  as  the  government  is  concerned,  it  derives  no 
power  from  this  clause  ;  and  the  same  is  true  of  its  several 
departments.  They  have  no  discretion  in  the  selection  of  any 
incidental  means  of  executing  their  several  trusts.  If  they 
need  the  use  of  such  means,  they  must  apply  to  congress  to 
furnish  them  ;  and  it  is  discretionary  with  that  body,  whether 
to  furnish  them  or  not.  All  this  is  perfectly  clear  from  the 
very  language  of  the  Constitution,  and  the  propriety  of  such  a 
provision  must  be  apparent  to  every  one.  If  power  could  be 
implied  in  favor  of  such  a  government  as  ours,  it  would,  if 
nothing  were  said  to  the  contrary,  be  implied  in  favor  of  every 
department  and  officer  thereof,  to  the  execution  of  whose  duties 
it  might  seem  to  be  necessary.  This  would  be  a  wide  extent 
of  discretion,  indeed  ;  so  wide,  that  it  would  render  all  the  lim- 
itations of  the  Constitution  nugatory  and  useless.  It  is  pre- 


f*1  0s?  1  c^sety  t'h*8  result  which  was  intended  to  be  *prevented 
by  the  clause  in  question.  The  States  were  unwilling 
to  entrust  such  a  discretion  either  to  the  government,  or  to  the 
several  departments  or  officers  thereof.  They  were  willing  to 
confer  it  on  congress  alone  ;  on  the  legislative  department,  the 
more  immediate  representatives  of  the  States  and  their  people, 
who  would  be  most  apt  to  discharge  the  trust  properly,  because 
they  had  the  least  temptation  to  abuse  it.  It  is  not  true,  then, 
as  our  author  supposes,  or,  at  least,  it  is  not  true  of  our  system, 
that  "  every  power  in  the  government  is,  in  its  nature,  sove- 
reign, and  includes,  by  force  of  the  term,  a  right  to  employ  all 
the  means  requisite,  and  fairly  applicable  to  the  attainment  of 
the  ends  of  such  power,  unless  they  are  excepted  in  the  Consti- 
tution, or  forbidden  by  some  consideration  of  public  morals,  or 
by  their  unsuitableness  to  the  proper  objects  of  government." 
In  our  government,  the  means  are  at  the  disposal  of  one  depart- 


OUR  FEDERAL  GOVERNMENT.  102 

mcnt  only,  which  may  either  grant  or  withhold  them  at  its 
pleasure. 

What,  then,  are  the  proper  limitations  of  the  power  of  con- 
gress in  this  respect  ?  This  has  always  heen  a  subject  of  great 
difficulty,  and  of  marked  difference  of  opinion,  among  politi- 
cians. I  cannot  hope  that  I  shall  be  able  perfectly  to  disem- 
barrass it ;  but  I  think,  nevertheless,  that  there  are  a  few  plain 
rules,  the  propriety  of  which  all  will  admit,  and  which  may 
materially  aid  us  in  the  formation  of  a  sound  opinion  upon  the 
subject. 

In  the  first  place,  then,  it  is  to  be  observed  that  congress  has 
no  power  under  this  clause  of  the  Constitution,  except  to  pro- 
vide the  means  of  executing  the  granted  powers.  It  is  not 
enough  that  the  means  adopted  are  sufficient  to  that  end ;  they 
must  be  adopted  bona  fide,  with  a  view  to  accomplish  it.  Con- 
gress have  no  right  to  use  for  the  accomplishment  of  one  pur- 
pose, means  ostensibly  provided  for  another.  To  do  so  would 
be  a  positive  fraud,  and  a  manifest  usurpation ;  for,  if  the  pur- 
pose be  lawful,  it  may  be  accomplished  by  its  own  appropriate 
means,  and  if  it  be  unlawful,  it  should  not  be  accomplished  at 
all.  It  is  quite  obvious  that,  without  this  check,  congress  may, 
by  indirection,  accomplish  almost  any  forbidden  object ;  for 
among  the  great  variety  of  means  adapted  to  carry  out  the 
granted  powers,  some  may  be  found  equally  calculated  to  effect, 
either  by  their  direct,  or  their  indirect  action,  purposes  of  a 
wholly  different  character  and  tendency.  It  is,  therefore,  of 
the  utmost  importance  to  the  preservation  of  the  true  princi- 
ples of  the  Constitution,  that  strict  faith  should  be  kept  upon 
this  point. 

In  the  second  place,  the  means  provided  must  not  only  be 
"necessary,"  but  they  must  also  be  "proper."  If  the  word 
"necessary"  *stood  alone,  it  would  be  susceptible  of  a  r*-i0o-i 
very  extended  meaning,  and  would  probably  be  consid- 
ered as  embracing  powers  which  it  never  was  in  the  contempla- 
tion of  the  framers  of  the  Constitution  to  grant.  It  was  neces- 
sary, then,  to  limit  and  restrain  it  by  some  other  word,  and  the 
word  "proper"  was  very  happily  selected.  This  word  requires 
that  the  means  selected  shall  be  strictly  constitutional.  In 
ascertaining  this,  we  must  have  regard  not  only  to  the  express 


TRUE  NATURE  AND  CHARACTER  OF 

provisions  of  the  Constitution,  but  also  to  the  general  nature 
and  character  of  our  institutions.  Ours  is  a  free  government, 
which  implies  that  it  is  also  an  equal  government ;  it  therefore 
authorizes  the  employment  of  no  means  for  the  execution  of  its 
powers,  except  such  as  are  consistent  with  the  spirit  of  liberty 
and  equality.  Ours  is  a  confederated  government ;  it  therefore 
authorizes  no  means  which  are  inconsistent  with  the  distinct 
sovereignty  of  the  States,  the  confederating  powers.  Ours  is 
a  government  of  "  delegated"  powers,  limited  and  specifically 
enumerated ;  it  therefore  authorizes  no  means  which  involve,  in 
the  use  of  them,  any  distinct  substantive  power,  not  granted. 
This  single  rule,  if  fairly  and  honestly  observed,  will  go  far  to 
remove  many  serious  difficulties  upon  this  point,  and  will  deprive 
the  federal  government  of  many  important  powers  which  it  has 
hitherto  exercised,  and  which  are  still  claimed  for  it,  by  our 
author,  and  the  whole  political  school  to  which  he  belongs.  The 
propriety,  and,  indeed,  the  absolute  necessity  of  the  rule,  appear 
to  me-  to  be  obvious.  If  powers  not  granted  might  be  used  as 
means  of  executing  the  granted  powers,  it  is  manifest  that  no 
power  whatever  could  be  considered  as  denied.  It  is  not  enough 
that  there  is  no  apparent  unconstitutionality  in  the  use  of  such 
means,  in  the  particular  case.  If  they  involve  a  principle 
which  will  authorize  the  use  of  ungranted  powers  in  any  other 
case,  they  are  forbidden  by  the  Constitution.  To  illustrate  this 
idea  by  an  example.  Congress  has  power  to  regulate  commerce 
among  the  several  States.  This  is  supposed  by  some  to  give 
them  power  to  open  channels  of  commerce,  by  making  roads, 
cutting  canals,  &c.,  through  the  territories  of  the  States.  But 
this  is  a  substantive  power  in  itself,  not  granted  to  the  United 
States,  but  reserved  to  the  States  respectively,  and  therefore  is 
not  allowed  as  a  means  of  regulating  commerce  among  the 
States.  Let  us  suppose,  however,  that  the  opening  of  roads 
and  cutting  of  canals  are  the  very  best  means  of  facilitating 
and  regulating  commerce  among  the  States,  and  that  there  is 
nothing  in  the  language  of  the  Constitution  to  forbid  it ;  we 
are  still  to  enquire  what  farther  powers  would  be  necessarily 
implied,  as  incidents  of  this.  We  find  that  the  power  to  open 
r*1041  a  roac*  though  a  *State,  implies  the  power  to  keep  it 
in  repair ;  to  impose  fines  and  penalties  on  those 


OUR   FEDERAL   GOVERNMENT. 

injure  it,  and,  consequently,  to  enforce  those  fines  and  penalties 
by  the  exercise  of  a  jurisdiction  over  it.  We  find  also,  that 
the  power  to  make  such  a  road,  implies  the  power  to  locate  it ; 
and,  as  there  is  nothing  to  control  the  discretion  of  congress 
in  this  respect,  there  is  nothing  to  forbid  them  to  locate  their 
road,  upon  the  bed  of  a  State  canal,  or  along  the  whole  course 
of  a  State  turnpike.  The  effect  of  this  would  be  to  transfer 
to  the  United  States,  against  the  consent  of  the  State,  and 
without  compensation,  improvements  made  by  the  State  within 
her  own  territory  and  at  her  own  expense.  Nay,  the  suprem- 
acy claimed  for  the  powers  of  congress  in  this  respect  would, 
upon  the  same  principle,  authorize  them  to  run  a  road  through 
the  centre  of  a  State  capitol,  or  to  cover  half  her  territory  with 
roads  and  canals,  over  which  the  State  could  exert  neither 
jurisdiction  nor  control.  The  improvements  of  individuals  too, 
and  of  corporate  bodies  made  under  the  authority  of  State  laws, 
would  thus  be  held  at  the  mercy  of  the  United  States.  When 
we  see,  then,  that  this  means  of  regulating  commerce  among 
the  States  would  necessarily  imply  these  vast  and  forbidden 
powers,  we  should  unhesitatingly  reject  them  as  unconstitu- 
tional. This  single  instance,  given  by  way  of  example  and 
illustration,  presents  a  rule  which,  if  strictly  adhered  to  in  all 
analogous  cases,  would  go  far  to  remove  the  difficulties,  and  to 
prevent  the  contests,  which  so  often  arise  on  this  part  of  the 
Constitution. 

These  few  simple  rules  are,  in  their  nature,  technical,  and 
may  at  all  times  be  easily  applied,  if  congress  will  observe  good 
faith  in  the  exercise  of  its  powers.  There  is  another  of  a  more 
enlarged  and  liberal  character,  which  the  word  "proper"  sug- 
gests, and  which,  if  applied  with  sound  judgment,  perfect 
integrity  and  impartial  justice,  will  render  all  others  compara- 
tively unnecessary.  It  exacts  of  congress  an  extended  and 
fair  view  of  the  relations  of  all  the  States,  and  a  strictly  impar- 
tial regard  to  their  respective  rights  and  interests.  Although 
the  direct  action  of  a  granted  power,  by  the  means  also  granted 
in  the  Constitution,  may  be  both  unequal  and  unjust,  those 
means  would,  nevertheless,  be  perfectly  constitutional.  Such 
injustice  and  inequality  would  be  but  the  necessary  consequence 
of  that  imperfection,  which  characterizes  every  human  institu- 


1Q4          TRUE  NATURE  AND  CHARACTER  OP 

tion,  and  to  which  those  who  undertake  to  prescribe  specific 
rules  to  themselves,  are  bound  to  submit.  But  when  congress 
are  called  on  to  provide  new  means  of  executing  a  granted 
power,  none  are  "proper,"  and  therefore  none  are  constitu- 
r*1051  tional  which  operate  unequally  and  unjustly,  *among 
the  States  or  the  people.  It  is  true  that  perfect  and 
exact  equality  in  this  respect  is  not  to  be  expected ;  but  a  near 
approach  to  it  will  always  be  made,  by  a  wise  and  fair  legisla- 
tion. Great  and  obvious  injustice  and  inequality  may  at  all 
times  be  avoided.  No  "means"  which  involve  these  conse- 
quences can  possibly  be  considered  "proper,"  either  in  a 
moral,  or  in  a  constitutional  sense.  It  requires  no  high  intel- 
lectual faculty  to  apply  this  rule ;  simple  integrity  is  all  that  is 
required. 

I  have  not  thought  it  necessary  to  follow  the  author  through 
his  extended  examination  of  what  he  terms  the  incidental  powers 
of  congress,  arising  under  the  clause  of  the  Constitution  we  are 
examining.  It  would  be  indeed  an  endless  task  to  do  so;  for  I 
am  unable  to  perceive  that  he  proposes  any  limit  to  them  at  all. 
Indeed,  he  tells  us  in  so  many  words,  that  "  upon  the  whole, 
the  result  of  the  most  careful  examination  of  this  clause  is,  that 
if  it  does  not  enlarge,  it  cannot  be  construed  to  restrain  the 
powers  of  congress,  or  impair  the  right  of  the  legislature  to  ex- 
ercise its  best  judgment  in  the  selection  of  measures  to  carry 
into  execution  the  constitutional  powers  of  the  national  govern- 
ment." This  is,  indeed,  a  sweep  of  authority,  boundless  and 
unrestricted.  The  "best  judgment"  of  congress  is  the  only 
limit  proposed  to  its  powers,  whilst  there  is  nothing  to  control 
that  judgment,  nor  to  correct  its  errors.  Government  is  aban- 
doned emphatically  to  its  own  discretion ;  for  even  if  a  correc- 
tive be  supposed  to  exist  with  the  people,  that  corrective  can 
never  be  applied  in  behalf  of  an  oppressed  minority.  Are  the 
rules  which  I  have  proposed  indeed  nothing?  Is  no  effect 
whatever  to  be  given  to  this  word  "proper,"  in  this  clause  of 
the  Constitution?  Can  the  author  possibly  be  right  in  suppos- 
ing that  the  Constitution  would  be  the  same  without  it  as  with 
it;  and  that  the  only  object  of  inserting  it  was  "the  desire  to 
remove  all  possible  doubt  respecting  the  right  to  legislate  on 
that  vast  mass  of  incidental  powers  which  must  be  involved  in 


OUR  FEDERAL  GOVERNMENT.  105 

the  Constitution,  if  that  instrument  be  not  a  splendid  pageant, 
or  a  delusive  phantom  of  sovereignty?"  It  was,  indeed,  the 
object  of  the  framers  of  the  Constitution  "  to  remove  all  pos- 
sible doubt"  from  this  subject.  They  desired  neither  a  splen- 
did pageant  nor  a  splendid  government.  They  knew  that  with- 
out this  restriction  ours  would  be  both;  and  as  powerful  as 
splendid.  They  did  not  design  that  any  power  with  which  they 
thought  proper  to  clothe  it  should  be  inoperative,  for  want  of 
means  to  carry  it  into  execution ;  but  they  never  designed  to 
give  it  the  boundless  field  of  its  own  mere  will,  for  the  selection 
of  those  means.  Having  specifically  enumerated  its  powers,  as 
far  as  was  practicable,  *they  never  designed  to  involve 
themselves  in  the  absurdity  of  removing,  by  a  single  *• 
clause,  every  restriction  which  they  had  previously  imposed. 
They  meant  to  assure  their  agent  that,  while  none  of  the  powers 
with  which  they  had  thought  proper  to  clothe  it  should  be  nu- 
gatory, none  of  them  should  be  executed  by  any  means  which 
were  not  both  "necessary"  and  "proper." 

The  lovers  of  a  strong  consolidated  government  have  labored 
strenuously,  and  I  fear  with  too  much  success,  to  remove  every 
available  restriction  upon  the  powers  of  congress.  The  tendency 
of  their  principles  is  to  establish  that  legislative  omnipotence 
which  is  the  fundamental  principle  of  the  British  Constitution, 
and  which  renders  every  form  of  written  constitution  idle  and 
useless.  They  suffer  themselves  to  be  too  much  attracted  by 
the  splendors  of  a  great  central  power.  Dazzled  by  these 
splendors,  they  lose  sight  of  the  more  useful,  yet  less  ostenta- 
tious purposes  of  the  State  governments,  and  seem  to  be  uncon- 
scious that,  in  building  up  this  huge  temple  of  federal  power, 
they  necessarily  destroy  those  less  pretending  structures  from 
which  alone  they  derive  shelter,  protection  and  safety.  This  is 
the  ignis  fatuus  which  has  so  often  deceived  nations,  and  be- 
trayed them  into  the  slough  of  despotism.  On  all  such,  the  im- 
pressive warning  of  Patrick  Henry,  drawn  from  the  lessons  of 
all  experience,  would  be  utterly  lost.  "  Those  nations  who  have 
gone  in  search  of  grandeur,  power  and  splendor,  have  also  fallen 
a  sacrifice  and  been  the  victims  of  their  own  folly.  While  they 
acquired  those  visionary  blessings,  they  lost  their  freedom." 
The  consolidationists  forget  these  wholesome  truths,  in  their 


106          TRUE  NATURE  AND  CHARACTER  OF 

eagerness  to  invest  the  federal  government  with  every  power 
which  is  necessary  to  realize  their  visions  in  a  great  and  splendid 
nation.  Hence  they  do  not  discriminate  between  the  several 
classes  of  federal  powers,  but  contend  for  all  of  them,  with  the 
same  blind  and  devoted  zeal.  It  is  remarkable  that,  in  the  ex- 
ercise of  all  those  functions  of  the  federal  government  which 
concern  our  foreign  relations,  scarcely  a  case  can  be  supposed, 
requiring  the  aid  of  any  implied  or  incidental  power,  as  to  which 
any  serious  doubt  can  arise.  The  powers  of  that  government, 
as  to  all  such  matters,  are  so  distinctly  and  plainly  pointed  out 
in  the  very  letter  of  the  Constitution,  and  they  are  so  ample  for 
all  the  purposes  contemplated,  that  it  is  only  necessary  to  un- 
derstand them  according  to  their  plain  meaning,  and  to  exercise 
them  according  to  their  acknowledged  extent.  No  auxiliaries 
are  required ;  the  government  has  only  to  go  on  in  the  execution 
of  its  trusts,  with  powers  at  once  ample  and  unquestioned.  It 
is  only  in  matters  which  concern  our  domestic  policy,  that  any 
serious  *struggle  for  federal  power  has  ever  arisen,  or 
J  is  likely  to  arise.  Here,  that  love  of  splendor  and  dis- 
play, which  deludes  so  large  a  portion  of  mankind,  unites  with 
that  self-interest  by  which  all  mankind  are  swayed,  in  aggran- 
dizing the  federal  government,  and  adding  to  its  powers.  He 
who  thinks  it  better  to  belong  to  a  splendid  and  showy  govern- 
ment, than  to  a  free  and  happy  one,  naturally  seeks  to  surround 
{ill  our  institutions  with  a  gaudy  pageantry,  which  belongs  only 
to  aristocratic  or  monarchical  systems.  But  the  great  struggle 
is  for  those  various  and  extended  powers,  from  the  exercise  of 
which  avarice  may  expect  its  gratifications.  Hence  the  desire 
for  a  profuse  expenditure  of  public  money,  and  hence  the 
thousand  schemes  under  the  name  of  internal  improvements,  by 
means  of  which  hungry  contractors  may  plunder  the  public 
treasury,  and  wily  speculators  prey  upon  the  less  skilful  and 
cunning.  And  hence,  too,  another  sort  of  legislation,  the  most 
vicious  of  the  whole,  which,  professing  a  fair  and  legitimate  ob- 
ject of  public  good,  looks,  really,  only  to  the  promotion  of  pri- 
vate interests.  It  is  thus  that  classes  are  united  in  supporting 
the  powers  of  government,  and  an  interest  is  created  strong 
enough  to  carry  all  measures,  and  sustain  all  abuses. 

Let  it  be  borne  in  mind  that,  as  to  all  these  subjects  of  do- 


OUR  FEDERAL  GOVERNMENT.  107 

mestic  concern,  there  is   no  absolute  necessity  that  the  federal 
government  should  possess  any  power  at  all.     They  are  all  such 
as  the  State  governments  are  perfectly  competent  to  manage ; 
and  the  most  competent,  because  each  State  is  the  best  judge  of 
•what  is  useful  or  necessary  to  itself.     There  is,  then,  no  room  to 
complain  of  any  want  of  power  to  do  whatever  the  interests  of 
the  people  require  to  be  done.     This  is  the  topic  upon  which  our 
author  has  lavishly  expended  his  strength.     Looking  upon  gov- 
ernment as  a  machine  contrived  only  for  the  public  good,  he 
thinks  it  strange  that  it  should  not  be  supposed  to  possess  all  the 
faculties  calculated  to  answer  the  purposes  of  its  creation.    And 
surely  it  would  be  strange,  if  it  were,  indeed,  so  defectively  con- 
structed.    But  the  author  seems  to  forget  that  in  our  system  the 
federal  government  stands  not  alone.     That  is  but  a  part  of  the 
machine ;  complete  in  itself,  certainly,  and  perfectly  competent, 
without  borrowing  aid  from  any  other  source,  to  work  out  its 
own  part  of  the  general  result.     But  it  is  not  competent  to  work 
out  the  whole  result.     The  State  governments  have    also  their 
part  to  perform,  and  the  two  together  make  the  perfect  work. 
Here,  then,  are  all  the  powers  which  it  is  necessary  that  govern- 
ment should  possess;  not  lodged  in  one  place,  but  distributed; 
not  the  power  of  the  State  governments,  nor  of  the  federal  gov- 
ernment, but  the  aggregate  of  their  several  and  *respec- 
tive   powers.     In  the  exercise  of  those  functions  which  L 
the  State  governments  are  forbidden  to  exercise,  the  federal 
government  need  not  look  beyond  the  letter  of  its  charter  for 
any  needful  power;  and  in  the  exercise  of  any  other  function, 
there  is  still  less  necessity  that  it  should  do  so;  because,  what- 
ever power  that  government  does  not  plainly  possess,  is  plainly 
possessed  by  the   State  governments.     I  speak,  of  cour.se,  of 
such  powers  only  as  may  be  exercised  either  by  the  one  or  the 
other,  and  not  of  such  as  are  denied  to  both.     I  mean  only  to 
say,  that  so  far  as  the  States  and  the  people  have  entrusted 
power  to  government  at  all,  they  have  done  so  in  language  plain 
and  full  enough  to  render  all  implication  unnecessary.     Let  the 
federal  government  exercise  only  such  power  as  plainly  belongs 
to  it,  rejecting  all  such  as  is  even  doubtful,  and  it  will  be  found 
that  our  system  will  work  out  all  the  useful  ends  of  government, 
harmoniously  and  without   contest,  and  without  dispute,  and 
without  usurpation. 


108         TRUE  NATURE  AND  CHARACTER  OF 

I  have  thus  finished  the  examination  of  the  political  part  of 
these  commentaries,  and  this  is  the  only  object  with  Ayhich  this 
review  was  commenced.  There  are,  however,  a  few  topics  yet 
remaining,  of  great  public  concern,  and  which  ought  not  to  be 
omitted.  Some  of  these,  as  it  seems  to  me,  have  been  pre- 
sented by  the  author  in  false  and  deceptive  lights,  and  others 
of  them,  from  their  intrinsic  importance,  cannot  be  too  often 
pressed  upon  public  attention.  I  do  not  propose  to  examine 
them  minutely,  but  simply  to  present  them  in  a  few  of  their 
strongest  lights. 

In  his  examination  of  the  structure  and  functions  of  the  house 
of  representatives,  the  author  has  given  his  views  of  that  clause  of 
the  Constitution  which  allows  representation  to  three-fifths  of  the 
slaves.  He  considers  the  compromise  upon  this  subject  as  unjust  in 
principle,  and  decidedly  injurious  to  the  people  of  the  non-slave- 
holding  States.  He  admits  that  an  equivalent  for  this  supposed 
concession  to  the  South  was  intended  to  be  secured  by  another 
provision,  which  directs  that  "Representatives  and  direct  taxes 
shall  be  apportioned  among  the  several  States,  according  to 
their  respective  numbers ;"  but  he  considers  this  provision 
"  more  specious  than  solid ;  for  while  in  the  levy  of  taxes  it  ap- 
portions them  on  three-fifths  of  persons  not  free,  it  on  the  other 
hand,  really  exempts  the  other  two-fifths  from  being  taxed  at 
all  as  property.  Whereas,  if  direct  taxes  had  been  apportioned, 
as  upon  principle  they  ought  to  be,  according  to  the  real  value 
of  property  within  the  State,  the  whole  of  the  slaves  would  have 
been  taxable  as  property.  But  a  far  more  striking  inequality 
has  been  disclosed  *by  the  practical  operations  of  the 
-1  government.  The  principle  of  representation  is  con- 
stant and  uniform ;  the  levy  of  direct  taxes  is  occasional  and 
rare.  In  the  course  of  forty  years,  no  more  than  three  direct 
taxes  have  been  levied,  and  those  only  under  very  extraordinary 
and  pressing  circumstances.  The  ordinary  expenditures  of  the 
government  are,  and  always  have  been,  derived  from  other 
sources.  Imposts  upon  foreign  importations  have  supplied,  and 
will  generally  supply,  all  the  common  wants;  and  if  these 
should  not  furnish  an  adequate  '  revenue,  excises  are  next  re- 
sorted to,  as  the  surest  and  most  convenient  mode  of  taxation. 


OUR  FEDERAL   GOVER]S7MENT.  109 

Direct  taxes  constitute  the  last  resort ;  and,  as  might  have  been 
foreseen,  would  never  be  laid  until  other  resources  had  failed." 
This  is  a  very  imperfect,  and,  as  it  seems  to  me,  not  a  very  can- 
did view  of  a  grave  and  important  subject.  It  would  have  been 
well  to  avoid  it  altogether,  if  it  had  been  permitted ;  for  the 
public  mind  needs  no  encouragement  to  dwell,  with  unpleasant 
reflections,  upon  the  topics  it  suggests.  In  an  examination  of 
the  Constitution  of  the  United  States,  however,  some  notice  of 
this  peculiar  feature  of  it  was  unavoidable ;  but  we  should  not 
have  expected  the  author  to  dismiss  it  with  such  criticism  only 
as  tends  to  show  that  it  is  unjust  to  his  own  peculiar  part  of 
the  country.  It  is  manifest  to  every  one  that  the  arrangement 
rests  upon  no  particular  principle,  but  is  a  mere  compromise 
between  conflicting  interests  and  opinions.  It  is  much  to  be 
regretted  that  it  is  not  on  all  hands  acquiesced  in  and  approved, 
upon  that  ground ;  for  no  public  necessity  requires  that  it  should 
be  discussed,  and  it  cannot  now  be  changed  without  serious 
danger  to  the  whole  fabric.  The  people  of  the  slave-holding 
States  themselves  have  never  shown  a  disposition  to  agitate  the 
question  at  all,  but,  on  the  contrary,  have  generally  sought  to 
avoid  it.  It  has,  however,  always  "been  complained  of  as  a 
grievance,"  by  the  non-slaveholding  States,  and  that  too  in 
language  which  leaves  little  doubt  that  a  wish  is  very  generally 
entertained  to  change  it.  A  grave  author,  like  Judge  Story, 
who  tells  the  people,  as  it  were  ex  cathedra,  that  the  thing  is 
unjust  in  itself,  will  scarcely  repress  the  dissatisfaction,  which 
such  an  announcement,  falling  in  with  preconceived  opinions, 
will  create,  by  a  simple  recommendation  to  acquiesce  in  it  as  a 
compromise,  tending  upon  the  whole  to  good  results.  His 
remarks  may  render  the  public  mind  more  unquiet  than  it  now 
is ;  they  can  scarcely  tranquillize  or  reconcile  it.  For  myself, 
I  am  very  far  from  wishing  to  bring  the  subject  into  serious 
discussion,  with  any  view  to  change;  but  I  cannot  agree  that 
an  arrangement,  obviously  injurious  to  the  South,  should  be 
*held  up  as  giving  her  advantages  of  which  the  North  has 
reason  to  complain. 

I  will  not  pause  to  inquire  whether  the  rule  apportioning 
representatives  according  to  numbers,  which,  after  much  con- 
test, was  finally  adopted  by  the  convention,  be  the  correct  one 


TRUE  NATURE  AND  CHARACTER  OF 

or  not.  Supposing  that  it  is  so,  the  rule  which  apportions 
taxation  in  the  same  way,  follows  as  matter  of  course.  The 
difficulties  under  which  the  convention  seem  to  have  labored, 
in  regard  to  this  subject,  may  well  excite  our  surprise,  at  the 
present  day.  If  the  North  really  supposed  that  they  conceded 
any  thing  to  the  South,  by  allowing  representation  to  three- 
fifths  of  their  slaves,  they  were  certainly  but  poorly  compen- 
sated for  the  concession,  by  that  provision  of  the  Constitution 
which  apportions  taxation  according  to  representation.  This 
principle  was  universally  acknowledged  throughout  the  United 
States,  and  is,  in  fact,  only  a  modification  of  the  great  princi- 
ple upon  which  the  revolution  itself  was  based.  That  taxation 
should  be  apportioned  to  representation,  results  from  the  feder- 
ative character  of  our  government ;  and  the  fact  that  this  rule 
was  adopted,  sustains  the  views  which  have  been  presented, 
upon  this  point.  It  would  have  been  indeed  strange,  if  some 
one  State,  having  only  half  the  representatives  of  its  neighbor 
State,  might  yet  have  been  subjected  to  twice  the  amount  of 
taxation ;  Delaware,  for  instance,  with  her  one  representative, 
to  twice  the  taxes  of  Pennsylvania,  with  her  twenty-eight.  A 
different  rule  from  that  which  prevails  might  subject  the  weaker 
States  to  intolerable  oppression.  A  combination  among  a  few 
of  the  strongest  States  might,  by  a  little  management,  throw 
the  whole  burthen  of  taxation  upon  the  others,  by  selecting 
only  such  subjects  of  taxation  as  they  themselves  did  not  pos- 
sess, or  which  they  possessed  only  to  a  comparatively  small 
extent.  It  never  would  have  answered  to  entrust  the  power  of 
taxation  to  congress,  without  some  check  against  these  and 
similar  abuses,  and  no  check  could  have  been  devised,  more 
effective  or  more  appropriate  than  the  provision  now  under  con- 
sideration. All  the  States  were  interested  in  it ;  and  the  South 
much  more  deeply  than  the  North.  The  slaves  of  the  South 
afford  the  readiest  of  all  possible  subjects  for  this  sort  of  prac- 
tice ;  and  it  would  be  going  too  far  to  say  that  they  would  not, 
at  some  day  or  other,  be  selected  for  it,  if  this  provision  of  the 
Constitution  did  not  stand  in  the  way.  The  Southern  States 
would  certainly  never  have  adopted  the  Constitution,  without 
some  such  guaranty  as  this,  against  those  oppressions  to  which 
their  peculiar  institutions  exposed  them  ;  and  the  weaker  States, 


OUR  FEDERAL    GOVERNMENT. 

whether  north  or  south,  would  never  have  adopted  it,  because  it 
might  lead  to  *their  utter  annihilation  in  the  confede- 
racy. This  provision  of  the  Constitution,  therefore,  can  L 
scarcely  be  considered  as  an  equivalent  for  any  thing  conceded 
by  some  of  the  States  to  others.  It  resulted  necessarily  from 
the  very  nature  of  their  union :  it  is  an  appropriate  and  neces- 
sary feature  in  every  confederacy  between  sovereign  States. 
We  ought,  then,  to  regard  that  provision  of  the  Constitution, 
which  allows  representation  to  only  three-fifths  of  the  slaves, 
as  a  concession  made  by  the  South;  and  one  for  which  they 
received  no  equivalent,  except  in  the  harmony  which  it  served 
to  produce. 

Reverting  to  the  rule,  that  representation  shall  be  appor- 
tioned to  population,  and  supposing  that  all  parties  acquiesce  in 
the  propriety  of  it,  upon  what  principle  is  the  rule  itself  founded  ? 
We  have  already  seen  that  the  whole  country  had  adopted  the 
principle,  that  taxation  should  be  apportioned  to  representa- 
tion, and,  of  course,  in  fixing  the  principle  of  representation, 
the  question  of  taxation  was  necessarily  involved.  There  is  no 
perfectly  just  rule  of  taxation,  but  property  ;  every  man  should 
contribute  to  the  support  of  the  government,  according  to  his 
ability,  that  is,  according  to  the  value  of  that  property  to  which 
government  extends  its  protection.  But  this  rule  never  can  be 
applied  in  practice  ;  because  it  is  impossible  to  discover  what  is 
the  amount  of  the  property,  either  of  individuals  or  nations. 
In  regard  to  states,  population  is  the  best  measure  of  this 
value  which  can  be  found,  and  is,  in  most  cases,  a  sufficiently 
accurate  one.  Although  the  wealth  of  a  state  cannot  be  ascer- 
tained, its  people  can  be  easily  counted,  and  hence  the  number 
of  its  people  gives  the  best  rule  for  its  representation,  and  con- 
sequently, for  its  taxation. 

The  population  of  a  state  is  received  as  the  best  measure  of 
the  value  of  its  property,  because  it  is  in  general  true,  that 
the  greater  the  number  of  people,  the  greater  is  the  amount 
of  productive  industry.  But  of  what  consequence  is  it,  by 
ivhat  sort  of  people  this  amount  of  production  is  afforded  ?  It 
was  required  that  each  State  of  our  Union  should  contribute  its 
due  proportion  to  the  common  treasury ;  a  proportion  ascertained 
9 


TRUE  NATURE  AND  CHARACTER  OF 

by  the  number  of  its  people.  Of  -what  consequence  is  it,  whether 
this  contribution  be  made  by  the  labor  of  slaves,  or  by  that  of 
freemen?  All  that  the  States  had  a  right  to  require  of  one 
another  was,  that  each  should  contribute  its  allotted  proportion ; 
but  no  State  had  a  right  to  enquire  from  what  particular  sources 
that  contribution  arose.  Each  State  having  a  perfect  right  to 
frame  its  own  municipal  regulations  for  itself,  the  other  States 
had  no  right  to  subject  her  to  any  disabilities  or  disadvantages 
on  account  of  them.  If  Massachusetts  had  a  right  to  object  to 
the  representation  *of  the  slaves  of  Virginia,  Virginia 
L  J-1-1  J  had  the  same  right  to  object  to  the  representation  of  the 
apprentices,  the  domestic  servants,  or  even  the  mechanics  of 
Massachusetts.  The  peculiar  private  condition  and  relations 
of  the  people  of  a  State  to  one  another  could  not  properly  be 
enquired  into  by  any  other  State.  That  is  a  subject  which 
each  State  regulates  for  itself;  and  it  cannot  enter  into  the 
question  of  the  influence  which  such  State  ought  to  possess,  in 
the  common  government  of  all  the  States.  It  is  enough  that  the 
State  brings  into  the  common  stock  a  certain  amount  of  wealth, 
resulting  from  the  industry  of  her  people.  Whether  those 
people  be  men  or  women,  bond  or  free,  or  bound  to  service  for 
a  limited  time  only,  is  the  exclusive  concern  of  the  State  itself, 
and  is  a  matter  with  which  the  other  States  cannot  intermeddle, 
without  impertinence,  injustice  and  oppression.  So  far,  then, 
from  limiting  representation  to  three-fifths  of  the  slaves,  they 
ought  all  to  be  represented,  for  all  contribute  to  the  aggregate 
of  the  productive  industry  of  the  country.  And,  even  then, 
the  rule  would  operate  injuriously  upon  the  slave-holding 
States ;  for,  if  the  labor  of  a  slave  be  as  productive  as  that  of 
a  free  man,  (and  in  agriculture  it  is  so,)  the  cost  of  supporting 
him  is  much  less.  Therefore,  of  the  same  amount  of  food  and 
clothing,  raised  by  the  two  classes,  a  greater  surplus  will 
remain  of  that  of  the  slave,  and  of  course  a  greater  amount 
subject  to  the  demands  of  the  public  necessities. 

The  remarks  of  John  Adams,  delivered  in  convention,*  are 
very  forcible  upon  this  point.  According  to  Mr.  Jefferson's 
report  of  them,  he  observed,  "  that  the  numbers  of  people  are 

*  Mr.  Adams  was  not  a  member  of  the  convention.  This  speech  was  made 
in  congress  in  deliberating  on  the  articles  of  confederation.— [Ed.] 


OUR  FEDERAL   GOVERNMENT.  H2 

taken  as  an  index  of  the  wealth  of  the  state,  and  not  as  sub- 
jects of  taxation ;  that,  as  to  this  matter  it  was  of  no  conse- 
quence by  what  name  you  called  your  people,  whether  by  that 
of  freemen  or  of  slaves;  that  in  some  countries  the  laboring 
poor  are  called  freemen,  in  others  they  are  called  slaves  ;  but 
that  the  difference,  as  to  the  state,  was  imaginary  only.  "What 
matters  it  whether  a  landlord,  employing  ten  laborers  on  his 
farm,  gives  them  annually  as  much  money  as  will  buy  them  the 
necessaries  of  life,  or  gives  them  those  necessaries  at  short 
hand?  The  ten  laborers  add  as  much  wealth  to  the  state, 
increase  its  exports  as  much,  in  the  one  case  as  in  the  other. 
Certainly  five  hundred  freemen  produce  no  more  profits,  no 
greater  surplus  for  the  payment  of  taxes,  than  five  hundred 
slaves.  Therefore  the  State,  in  which  are  the  laborers  called 
freemen,  should  be  taxed  no  more  than  that  in  which  are  the 
laborers  called  slaves.  Suppose  by  an  extraordinary  operation 
of  nature  or  of  law,  one-half  the  laborers  of  a  State  could,  in 
the  course  of  one  night,  be  transformed  into  slaves,  would  the 
State  be  *made  poorer  or  less  able  to  pay  taxes?  r#11on 
That  the  condition  of  the  laboring  poor  in  most  coun-  *- 
tries,  that  of  the  fishermen  particularly  of  the  Northern  States, 
is  as  abject  as  that  of  slaves.  It  is  the  number  of  laborers 
which  produces  the  surplus  for  taxation,  and  numbers  therefore, 
indiscriminately,  are  the  fair  index  to  wealth." 

It  is  obvious  that  these  remarks  were  made  for  a  very  different 
purpose  from  that  which  I  have  in  view.  The  subject  then  be- 
fore the  convention  was  the  proper  rule  of  taxation,  and  it  was  Mr. 
Adams'  purpose  to  show  that,  as  to  that  matter,  slaves  should  be 
considered  only  as  people,  and,  consequently,  as  an  index  of 
the  amount  of  taxable  wealth.  The  convention  had  not  then  de- 
termined that  representatives  and  direct  taxes  should  be  regu- 
lated by  the  same  ratio.  When  they  did  determine  this,  the  re- 
marks of  Mr.  Adams  seem  to  me  conclusive,  to  show  that  repre- 
sentation of  all  the  slaves  ought  to  have  been  allowed ;  nor  do 
I  see  how  those  who  held  his  opinions  could  possibly  have  voted 
otherwise.  If  slaves  are  people,  as  forming  the  measure  of  na- 
tional wealth,  and  consequently  of  taxation,  and  if  taxation 
and  representation  be  placed  upon  the  same  principle,  and 
regulated  by  the  same  ratio,  then  that  slaves  are  people,  in 


TRUE  NATURE  AND  CHARACTER  OF 

fixing  the  ratio  of  representation,  is  a  logical  sequitur  which  no 
one  can  possibly  deny. 

But  it  is  objected  that  slaves  are  property,  and,  for  that  rea- 
son, are  not  more  entitled  to  representation  than  any  other 
species  of  property.  But  they  are  also  people,  and,  upon  ana- 
logous principles,  are  entitled  to  representation  as  people.  It 
is  in  this  character  alone  that  the  non-slave-holding  States  have 
a  right  to  consider  them,  as  has  already  been  shown,  and  in  this 
character  alone  is  it  just  to  consider  them.  "We  ought  to  pre- 
sume that  every  slave  occupies  a  place  which,  but  for  his  pres- 
ence, would  be  occupied  by  a  free  white  man  ;  and,  if  this  were 
so,  every  one,  and  not  three-fifths  only,  would  be  represented. 
But  the  States  who  hold  no  slaves  have  no  right  to  complain 
that  this  is  not  the  case  in  other  States,  so  long  as  the  labor  of 
the  slave  contributes  as  much  to  the  common  stock  of  productive 
industry,  as  the  labor  of  the  white  man.  It  is  enough  that  a 
State  possesses  a  certain  number  of  people,  of  living,  rational 
beings.  We  are  not  to  enquire  whether  they  be  black,  or  white, 
or  tawny,  nor  what  are  their  peculiar  relations  among  one  an- 
other. If  the  slave  of  the  south  be  property,  of  what  nature  is 
that  property,  and  what  kind  of  interest  has  the  owner  in  it  ? 
He  has  a  right  to  the  profits  of  the  slave's  labor.  And  so,  the 
master  of  an  indented  apprentice  has  a  right  to  the  profits  of 
his  labor.  It  is  true,  one  holds  the  right  for  the  life  of  the 


r*114"l  s^ave'  an<^  **^e  otner  onty  f°r  a  ^me  limited  in  the  ap- 
prentices' indentures  ;  but  this  is  a  difference  only  in 
ihe  extent,  and  not  in  the  nature  of  the  interest.  It  is  also 
,trae,  that  the  owner  of  a  slave  has,  in  most  States,  a  right  to 
.sett  him  ;  but  this  is  only  because  the  laws  of  the  State  autho- 
rize him  to  do  so.  And,  in  like  manner,  the  indentures  of  an 
apprentice  may  be  transferred  if  the  laws  of  the  State  will  al- 
low it.  In  all  these  respects,  therefore,  the  slave  and  the  in- 
dented apprentice  stand  upon  precisely  the  same  principle.  To 
a  certain  extent,  they  are  both  property,  and  neither  of  them 
can  be  regarded  as  a  free  man  ;  and  if  the  one  be  not  entitled 
to  representation,  the  other  also  should  be  denied  that  right. 
Whatever  be  the  difference  of  their  relations  to  the  separate 
members  of  the  community,  in  the  eye  of  that  community  they 
are  both  people.  Here,  again,  Mr.  Adams  shall  speak  for  me  ; 


OUR  FEDERAL  GOVERNMENT.  114 

and  our  country  has  produced  few  men  Avho  could  speak  more 
wisely.  "  A  slave  may  indeed,  from  the  custom  of  speech,  be 
more  properly  called  the  wealth  of  his  master,  than  the  free  la- 
borer might  be  called  the  wealth  of  his  employer ;  but  as  to  the 
State,  both  are  equally  its  wealth,  and  should  therefore  equally 
add  to  the  quota  of  its  tax."  Yes  ;  and,  consequently,  they 
should  equally  add  to  the  quota  of  its  representation. 

Our  author  supposes  that  it  is  a  great  advantage  to  the  slave- 
holding  States  that,  while  three-fifths  of  the  slaves  are  entitled 

O  ' 

to  representation,  Zwo-fifths  are  exempted  from  taxation.  Why 
confine  it  to  three-fifths  ?  Suppose  that  none  of  them  were  en- 
titled to  representation,  the  only  consequence  would  be,  that 
the  State  would  have  fewer  representatives,  and,  for  that  reason, 
would  have  a  less  amount  of  taxes  to  pay.  In  this  case,  all  the 
slaves  would  be  exempted  from  taxation ;  and,  according  to  our 
author,  the  slave-holding  States  would  have  great  reason  to  be 
content  with  so  distinguishing  an  advantage.  And,  for  the 
same  reason,  every  other  State  would  have  cause  to  rejoice  at 
the  diminution  of  the  number  of  its  people,  for  although  its  re- 
presentation would  thereby  be  decreased,  its  taxes  would  be 
decreased  in  the  same  proportion.  This  is  the  true  mode  of 
testing  the  author's  position.  It  will  be  found  that  every  State 
values  the  right  of  representation  at  a  price  infinitely  beyond 
the  amount  of  direct  taxes  to  which  that  right  may  subject  it ; 
and,  of  course,  the  Southern  States  have  little  reason  to  be 
thankful  that  two-fifths  of  their  slaves  are  exempted  from  taxa- 
tion, since  they  lose,  in  consequence  of  it,  the  right  of  repre- 
sentation to  the  same  extent.  The  author,  however,  seems  to 
have  forgotten  this  connexion  between  representation  and  taxa- 
tion ;  he  looks  only  at  the  sources  whence  the  Union  may  draw 
wealth  from  *  the  South,  without  enquiring  into  the  r*-i-|c-i 
principles  upon  which  her  representation  may  be  en- 
larged. He  thinks  that  direct  taxes  ought  to  be  apportioned, 
"  according  to  the  real  value  of  property  within  the  State;"  in 
which  case  "  the  whole  of  the  slaves  would  have  been  taxable 
as  property."  I  have  already  remarked  that  this  is,  indeed, 
the  true  rule ;  but  it  is  wholly  impracticable.  It  would  be  alike 
impossible  to  fix  a  satisfactory  standard  of  valuation,  and  to 
discover  the  taxable  subjects.  No  approximation  to  the  truth 


TRUE  NATURE  AND  CHARACTER  OP 

could  be  hoped  for,  -without  a  host  of  officers,  whose  compensa- 
tions would  consume  a  large  proportion  of  the  tax,  while,  from 
the  very  nature  of  their  duties,  they  would  be  forced  into  minute 
examinations,  inconsistent  with  the  freedom  of  our  institutions, 
harassing  and  vexatious  in  their  details,  and  leading  inevitably 
to  popular  resistance  and  tumult.  And  this  process  must  be  gone 
through  at  every  new  tax ;  for  the  relative  wealth  of  the  States 
would  be  continually  changing.  Hence,  population  has  been 
selected  as  the  proper  measure  of  the  wealth  of  the  States. 
But,  upon  our  author's  principle,  the  South  would  be,  indeed, 
little  better  off  than  the  lamb  in  the  embrace  of  the  wolf.  The 
slaves  are  easily  found ;  they  can  neither  be  buried  under 
ground,  nor  hid  in  the  secret  drawers  of  a  bureau.  They  are 
peculiar,  too,  to  a  particular  region ;  and  other  regions,  having 
none  of  them,  would  yet  have  a  voice  in  fixing  their  value  as 
subjects  of  taxation.  That  they  would  bear  something  more 
than  their  due  share  of  this  burthen,  is  just  as  certain  as  that 
man,  under  all  circumstances,  will  act  according  to  his  nature. 
In  the  mean  time,  not  being  considered  as  people,  they  would 
have  no  right  to  be  heard  in  their  own  defence,  through  their 
representatives  in  the  federal  councils.  On  the  other  hand,  the 
non-slave-holding  States  would  be  represented  in  proportion  to 
the  whole  numbers  of  their  people,  and  would  be  taxed  only 
according  to  that  part  of  their  wealth  which  they  might  choose 
to  disclose,  or  which  they  could  not  conceal.  And  in  the  esti- 
mate of  this  wealth,  their  people  would  not  be  counted  as  taxa- 
ble subjects,  although  they  hold  to  their  respective  States  pre- 
cisely the  same  relation,  as  laborers  and  contributors  to  the 
common  treasury,  as  is  held  by  the  slaves  of  the  South  to  their 
respective  States.  The  rule,  then,  which  considers  slaves  only 
as  property  to  be  taxed,  and  not  as  people  to  be  represented, 
is  little  else  than  a  rule  imposing  on  the  Southern  States  almost 
the  entire  burthens  of  the  government,  and  allowing  to  them 
only  the  shadow  of  influence  in  the  measures  of  that  govern- 
ment. 

The  truth  is,  the  slave-holding  States  have  always  contributed 

more  than  their  just  proportion  to  the  wealth  and  strength  of 

f  *116~1  *^e  count;ry>  *and  not  less  than  their  just  proportion  to 

its  intelligence  and  public  virtue.     This  is  the  only 


OUR  FEDERAL   GOVERNMENT. 

perfectly  just  measure  of  political  influence  ;  but  it  is  a  meas- 
ure which  cannot  be  applied  in  practice.  We  receive  popula- 
tion as  the  best  practicable  substitute  for  it;  and  as  allpeopfe, 
whatever  be  their  private  and  peculiar  conditions  and  relations, 
are  presumed  to  contribute  their  share  to  the  stock  of  general 
wealth,  intelligence  and  virtue,  they  are  all  entitled  to  their  re- 
spective shares  of  influence  in  the  measures  of  government.  The 
slave-holding  States,  therefore,  had  a  right  to  demand  that  all 
their  slaves  should  be  represented ;  they  yielded  too  much  in 
agreeing  that  only  three-fifths  of  them  should  possess  that 
right.  I  cannot  doubt  that  this  would  have  been  conceded  by 
the  convention,  had  the  principle,  that  representatives  and  direct 
taxes  should  be  apportioned  according  to  the  same  ratio,  been 
then  adopted  into  the  Constitution.  It  would  have  been  per- 
ceived that,  while  the  representation  of  the  Southern  States  would 
thus  have  been  increased,  their  share  of  the  public  taxes  would 
have  been  increased  in  the  same  proportion ;  and  thus  they 
would  have  stood,  in  all  respects,  upon  the  same  footing  with 
the  other  States.  The  Northern  States  would  have  said  to  them, 
"Count  your  people ;  it  is  of  no  consequence  to  us  what  is  their 
condition  at  home ;  they  are  laborers,  and  therefore  they  con- 
tribute the  same  amount  of  taxable  subjects,  whether  black  or 
white,  bond  or  free.  We  therefore  recognize  them  as  people, 
and  give  them  representation  as  such.  All  that  we  require  is, 
that  when  we  come  to  lay  direct  taxes,  they  shall  be  regarded 
as  people  still,  and  you  shall  contribute  for  them  precisely  as 
we  contribute  for  our  people."  This  is  the  plain  justice  of  the 
case ;  and  this  alone  would  be  consistent  with  the  great  princi- 
ples which  ought  to  regulate  the  subject.  It  is  a  result  which  is 
no  longer  attainable,  and  the  South  will,  as  they  ought  to  do, 
acquiesce  in  the  arrangement  as  it  now  stands.  But  they  have 
reason  to  complain  that  grave  authors,  in  elaborate  works  de- 
signed to  form  the  opinions  of  rising  generations,  should  so  treat 
the  subject  as  to  create  an  impression  that  the  Southern  States 
are  enjoying  advantages  under  our  Constitution,  to  which  they 
are  not  fairly  entitled,  and  which  they  owe  only  to  the  liberality 
of  the  other  States;  for  the  South  feels  that  these  supposed  ad- 
vantages are,  in  fact,  sacrifices,  which  she  has  made  only  to  a 


TRUE  NATURE  AN7D  CHARACTER   OF 

spirit  of  conciliation  and  harmony,  and  which  neither  justice 
nor  sound  principle  would  ever  have  exacted  of  her. 

The  most  defective  part  of  the  Federal  Constitution,  beyond 
all  question,  is  that  which  relates  to  the  executive  depart- 
ment. It  is  impossible  to  read  that  instrument,  without 

117n  being  forcibly  struck  with  *the  loose  and  unguarded 
J  terms  in  which  the  powers  and  duties  of  the  President 
are  pointed  out.  So  far  as  the  legislature  is  concerned,  the 
limitations  of  the  Constitution  are,  perhaps,  as  precise  and 
strict  as  they  could  safely  have  been  made ;  but  in  regard  to 
the  executive,  the  convention  appear  to  have  studiously  selected 
such  loose  and  general  expressions,  as  would  enable  the  Presi- 
dent, by  implication  and  construction,  either  to  neglect  his  du- 
ties, or  to  enlarge  his  powers.  We  have  heard  it  gravely  as- 
serted in  congress,  that  whatever  power  is  neither  legislative  nor 
judiciary,  is,  of  course,  executive,  and,  as  such,  belongs  to  the 
President,  under  the  Constitution !  How  far  a  majority  of  that 
body  would  have  sustained  a  doctrine  so  monstrous,  and  so  ut- 
terly at  war  with  the  whole  genius  of  our  government,  it  is  im- 
possible to  say ;  but  this,  at  least,  we  know,  that  it  met  with  no 
rebuke  from  those  who  supported  the  particular  act  of  executive 
power,  in  defence  of  which  it  was  urged.  Be  this  as  it  may,  it 
is  a  reproach  to  the  Constitution,  that  the  executive  trust  is  so 
ill-defined,  as  to  leave  any  plausible  pretence,  even  to  the  insane 
zeal  of  party  devotion,  for  attributing  to  the  President  of  the 
United  States  the  powers  of  a  despot;  powers  which  are  wholly 
unknown  in  any  limited  monarchy  in  the  world. 

It  is  remarkable  that  the  Constitution  is  wholly  silent  in  re- 
gard to  the  power  of  removal  from  office.  The  appointing  power 
is  in  the  President  and  senate;  the  President  nominating,  and 
the  senate  confirming;  but  the  power  to  remove  from  office 
seems  never  to  have  been  contemplated  by  the  convention  at 
all,  for  they  have  given  no  directions  whatever  upon  the  subject. 
The  consequence  has  been  precisely  such  as  might  have  been 
expected,  a  severe  contest  for  the  possession  of  that  power,  and 
the  ultimate  usurpation  of  it,  by  that  department  of  the  govern- 
ment to  which  it  ought  never  to  be  entrusted.  In  the  absence 
of  all  precise  directions  upon  the  subject,  it  would  seem  that  the 
power  to  remove  ought  to  attend  the  power  to  appoint;  for 


OUR  FEDERAL  GOVERNMENT.  H7 

those  whose  duty  it  is  to  fill  the  offices  of  the  country  with  compe- 
tent incumbents,  cannot  possibly  execute  that  trust  fully  and  well, 
unless  they  have  power  to  correct  their  own  errors  and  mistakes, 
by  removing  the  unworthy,  and  substituting  better  men  in  their 
places.  This,  I  have  no  doubt,  is  the  true  construction  of  our 
Constitution.  It  was  for  a  long  time  strenuously  contended  for 
by  a  large  party  in  the  country,  and  was  finally  yielded,  rather 
to  the  confidence  which  the  country  reposed  in  the  virtues 
of  Washington,  than  to  any  conviction  that  it  was  properly  an 
executive  power,  belonging  only  to  the  President.  It  is  true  of 
Washington  alone  of  all  the  truly  *great  of  the  earth,  that 
he  never  inflicted  an  injury  upon  his  country,  except  only  L 
such  as  proceeded  from  the  excess  of  his  own  virtues.  His  known 
patriotism,  wisdom  and  purity,  inspired  us  with  a  confidence  and  a 
feeling  of  security  against  the  abuses  of  power,  which  has  led 
to  the  establishment  of  many  precedents,  dangerous  to  public 
liberty  in  the  hands  of  any  other  man.  Of  these,  the  instance 
before  us  is  not  the  least  important.  The  power  to  remove  from 
office  is,  in  effect,  the  power  to  appoint  to  office.  What  does  it 
avail  that  the  senate  must  be  consulted  in  appointing  to  office, 
if  the  President  may,  the  very  next  moment,  annul  the  act  by 
removing  the  person  appointed !  The  senate  has  no  right  to 
select ;  they  can  do  nothing  more  than  confirm  or  reject  the 
person  nominated  by  the  President.  The  President  may  nomi- 
nate his  own  devoted  creatures ;  if  the  senate  should  disapprove 
any  one  of  them,  he  has  only  to  nominate  another,  and  another, 
and  another;  for  there  is  no  danger  that  the  list  will  be  ex- 
hausted, until  the  senate  will  be  persuaded  or  worried  into  com- 
pliance. And  when  the  appointment  is  made,  the  incumbent 
knows  that  he  is  a  mere  tenant  at  will,  and  necessarily  becomes 
the  mere  tool  and  slave  of  the  man  at  whose  sole  pleasure  he 
eats  his  daily  bread.  Surely,  it  is  a  great  and  alarming  defect 
in  our  Constitution,  that  so  vast  and  dangerous  a  power  as  this 
should  be  held  by  one  man.  Nothing  more  is  required  to  place 
the  liberties  of  the  country  at  the  feet  of  the  President,  than  to 
authorize  him  to  fill,  and  to  vacate  and  to  fill  again,  at  his  sole 
will  and  pleasure,  all  the  offices  of  the  country. 

The  necessary  consequence  of  enabling  the  President  to  re- 
move from  office  at  his  mere  pleasure  is,  that  the  officer  soon 


TRUE  NATURE  AND  CHARACTER  OF 

learns  to  consider  himself  the  officer  of  the  President,  and  not 
of  the  country.  The  nature  of  his  responsibility  is  changed; 
he  answers  not  to  the  people  for  his  conduct,  for  he  is  beyond 
their  reach;  he  looks  only  to  the  President,  and,  satisfied  with 
his  approval,  is  regardless  of  every  thing  else.  In  fact,  his 
office,  however  obscure  it  may  be,  soon  comes  to  be  considered 
only  a  part  of  the  great  executive  power  lodged  in  the  President. 
The  President  is  the  village  postmaster,  the  collector  of  the 
customs,  the  marshal,  and  every  thing  else ;  and  the  incumbents 
of  those  offices  are  but  his  agents,  through  whom,  for  the  sake 
of  convenience,  he  exercises  so  much  of  his  gigantic  powers. 
One  step  farther,  and  the  agency  of  the  senate  in  these  appoint- 
ments will  be  no  longer  invoked.  A  little  more  of  that  con- 
struction and  implication  to  which  the  looseness  of  the  Constitu- 
tion, on  this  point,  holds  out  the  strongest  invitation,  and  the 
President  will  say  to  the  senate,  "  This  collectorship  is  a  part  of 
the  great  executive  trust  which  is  lodged  in  *me ; 
-1  I  have  a  right  to  discharge  it  in  person,  if  I  please, 
and,  consequently,  I  have  a  right  to  discharge  it  by  my  own 
agent.  It  is  my  duty  to  see  that  the  laws  are  executed ;  and 
if  I  do  so,  that  is  all  that  the  country  can  require  of  me.  I 
have  a  right  to  do  so  in  my  own  way."  There  is  no  extrava- 
gance in  this  supposition ;  nothing  in  the  past  history  of  the 
country  which  teaches  us  to  consider  it  an  improbable  result. 
Who  does  not  perceive  that  the  claims  which  have  already  been 
made,  in  behalf  of  executive  power  upon  this  very  point,  must  of 
necessity  change  the  whole  nature  and  spirit  of  our  institutions  ? 
Their  fundamental  principle  is,  that  all  power  is  in  the  people, 
and  that  public  officers  are  but  their  trustees  and  servants,  re- 
sponsible to  them  for  the  execution  of  their  trusts.  And  yet, 
in  the  various  ramifications  of  the  executive  power,  in  the  thou- 
sand agencies  necessary  to  the  convenience  and  interests  of  the 
people,  which  belong  to  that  department,  there  is,  in  effect,  no 
responsibility  whatever.  The  injured  citizen  can  make  his 
complaint  only  to  the  President,  and  the  President's  creature 
knows  that  he  is  perfectly  secure  of  his  protection,  because  he 
has  already  purchased  it  by  slavish  subserviency.  Is  it  enough 
that  the  President  himself  is  responsible  ?  We  shall  soon  see 
that  his  responsibility  is  nominal  only ;  a  mere  formal  mockery. 


OUR  FEDERAL  GOVERNMENT.  H9 

And  responsible  for  what  ?  "Will  you  impeach  the  President 
because  a  postmaster  has  robbed  the  public  mail,  or  a  collector 
of  the  customs  stolen  the  public  money  ?  There  is  absurdity  in 
the  very  idea.  Will  you  impeach  him  because  he  does  not  re- 
move these  unfaithful  agents,  and  appoint  others  ?  He  will  tell 
you  that,  according  to  the  construction  which  has  been  given  to 
the  Constitution,  and  in  which  you  yourselves  have  acquiesced, 
that  matter  depends  solely  on  his  own  will,  and  you  have  no 
right  to  punish  him  for  what  the  Constitution  authorizes  him  to 
do.  What  then  is  the  result?  The  President  claims  every 
power  which,  by  the  most  labored  constructions,  and  the  most 
forced  implications,  can  be  considered  as  executive.  No  matter 
in  how  many  hands  they  are  distributed,  he  wields  them  all ; 
and  when  we  call  on  him  to  answer  for  an  abuse  of  those  powers, 
he  gravely  tells  us,  that  his  agents  have  abused  them,  and  not 
he.  And  when  we  call  on  those  agents  to  answer,  they  impu- 
dently reply,  that  it  is  no  concern  of  ours,  they  will  answer  to 
the  President!  Thus  powers  may  be  multiplied  and  abused 
without  end,  and  the  people,  the  real  sovereigns,  the  deposi- 
taries of  all  power,  can  neither  check  nor  punish  them ! 

This  subj  ect  certainly  calls  loudly  for  public  attention.  We  ought 
not  to  lose  sight  of  the  rapid  progress  we  have  made  in  the  decline 
of  *public  virtue.  It  becomes  us  to  understand  that  we 
have,  no  longer,  Washingtons  among  us,  to  whose  pure  *- 
hands  the  greatest  powers  may  be  safely  entrusted.  We  are 
now  in  that  precise  stage  of  our  progress,  when  reform  is  not 
impossible,  and  when  the  practical  operation  of  the  government 
has  shown  us  in  what  particulars  reform  is  necessary.  If  we 
regard  our  government,  not  as  the  mere  institution  of  the  hour, 
but  as  a  system  which  is  to  last  through  many  successive  gen- 
erations, protecting  and  blessing  them,  it  becomes  us  to  correct 
its  faults,  to  prune  its  redundancies,  to  supply  its  defects,  to 
strengthen  its  weak  points,  and  check  its  tendency  to  run  into 
irresponsible  power.  If  this  be  not  speedily  done,  it  requires 
no  prophet's  eye  to  see  that  it  will  not  be  done  at  all.  And 
whenever  this  great  and  necessary  work  shall  be  undertaken,  the 
single  reform  which  is  here  suggested  will  accomplish  half  that 
is  required. 

Another  striking  imperfection  of  the  Constitution,  as  respects 


120          TRUE  NATURE  AND  CHARACTER  OF 

the  executive  department,  is  found  in  the  veto  power.  The 
right  to  forbid  the  people  to  pass  whatever  laws  they  please,  is 
the  right  to  deprive  them  of  self-government.  It  is  a  power 
which  can  never  be  entrusted  to  one  man,  or  any  number  of 
men  short  of  the  people  themselves,  without  the  certain  destruc- 
tion of  public  liberty.  It  is  true  that  each  department  of  the 
government  should  be  armed  with  a  certain  power  of  self-pro- 
tection against  the  assaults  of  the  other  departments ;  and  the 
executive,  probably,  stands  most  in  need  of  such  protection. 
But  the  veto  power,  as  it  stands  in  the  Constitution,  goes  far 
beyond  this  object.  It  is,  in  effect,  a  power  in  the  executive 
department  to  forbid  all  action  in  any  other.  It  is  true  that, 
notwithstanding  the  veto  of  the  President,  a  law  may  still  be 
passed,  provided  two-thirds  of  each  house  of  congress  agree 
therein ;  but  it  is  obvious  that  the  cases  are  very  rare,  in  which 
such  concurrence  could  be  expected.  In  cases  of  plain  necessity 
or  policy  the  veto  would  not  be  applied ;  and  those  of  doubtful 
necessity  or  policy  would  rarely  be  carried  by  a  majority  so 
large  as  two-thirds  of  each  house.  And  yet  in  these  it  may  be 
just  as  important  that  the  public  will  should  be  carried  out,  as 
in  cases  of  less  doubt  and  difficulty.  It  may  be,  also,  that  a 
President  may  oppose  the  passage  of  laws  of  the  plainest  and 
most  pressing  necessity.  And  if  he  should  do  so,  it  would  cer- 
tainly give  him  a  most  improper  power  over  the  people,  to  en- 
able him  to  prevent  the  most  necessary  legislation,  with  only 
one-third  of  each  house  of  congress  in  his  favor.  There  is  some- 
thing incongruous  in  this  union  of  legislative  and  executive 
powers  in  the  same  man.  Perhaps  it  is  proper  that  there  should 
be  a  power  somewhere,  to  check  hasty  and  *ill-con- 
-*  sidered  legislation,  and  that  power  may  be  as  well  en- 
trusted to  the  President  as  to  any  other  authority.  But  it  is 
not  necessary  that  it  should  be  great  enough  to  prevent  all  le- 
gislation, nor  to  control  in  any  respect  the  free  exercise  of  the 
legislative  will.  It  would  be  quite  enough  for  the  security  of 
the  rights  of  the  executive,  and  quite  enough  to  ensure  tempe- 
rate and  wise  legislation,  to  authorize  the  President  merely  to 
send  back  to  the  legislature  for  reconsideration  any  law  which 
he  disapproved.  By  thus  affording  to  that  body  time  and  op- 
portunity for  reflection,  with  all  the  additional  lights  which  the 


OUR  FEDERAL  GOVERNMENT.  121 

President  himself  could  throw  upon  the  subject,  we  should  have 
every  reasonable  security  for  the  due  exercise  of  the  legislative 
wisdom,  and  a  fair  expression  of  the  public  will.  But  if,  after 
all  this,  the  legislature,  in  both  its  branches,  should  still  adhere 
to  their  opinion,  the  theory  and  the  sound  practice  of  all  our 
institutions  require  that  their  decision  should  be  binding  and 
final. 

But  the  great  defect  of  the  Constitution  in  relation  to  this 
department  is,  that  the  responsibility  of  the  President  is  not 
duly  secured.  I  am  sensible  of  the  great  difficulty  which 
exists  in  arranging  this  subject  properly.  It  is  scarcely  pos- 
sible to  lodge  the  power  of  impeachment  any  where,  without 
subjecting  it  to  the  danger  of  corrupting  influences ;  and  it  is 
equally  difficult  so  to  limit  the  extent  and  direct  the  exercise  of 
that  power,  as  to  reconcile  a  proper  responsibility  in  the  officer, 
with  a  proper  independence  and  sense  of  security,  in  the  dis- 
charge of  his  duties.  The  power  to  try  impeachments  is  cor- 
rectly lodged  with  the  senate,  the  representative  of  the  States ; 
for,  as  the  government,  with  all  its  offices,  was  created  by  the 
States,  the  States  alone  should  have  the  right  to  try  and  to 
remove  the'  delinquent  incumbents.  But  in  the  exercise  of  this 
power,  the  concurrence  of  too  large  a  proportion  is  made  neces- 
sary to  conviction.  The  same  reasoning  applies  here  which 
was  applied  to  the  veto  power.  Nothing  short  of  the  most 
flagrant  and  indisputable  guilt  will  ever  subject  a  president  to 
removal  by  impeachment.  He  must  be,  indeed,  but  little  prac- 
ticed in  the  ways  of  men,  or  strangely  misled  and  infatuated,  if, 
with  all  the  means  which  his  office  places  within  his  control,  he 
cannot  bring  over  at  least  one-third  of  the  senate  to  his  support. 

It  is  scarcely  to  be  supposed  that  a  man  elected  by  the  suf- 
frages of  a  majority  of  the  States  would,  within  the  short 
period  of  four  years,  so  far  forfeit  his  standing  with  the  public, 
as  not  to  retain  the  confidence  of  at  least  one-third  of  them. 
Besides,  he  has  abundant  means  of  influencing  the  conduct  of 
his  triers,  however  strong  may  be  public  opinion  against  him. 
To  require,  therefore,  the  concurrence  of  two-thirds  *of 
the  senators  present,  is,  in  effect,  to  render  the  whole  L 
process  an  idle  form.     It  might  not  be  safe,  however,  to  repose 
this  high  trust  in  a  bare  majority.     The  object  to  be  attained 


122          TRUE  NATURE  AXD  CHARACTER  OF 

is,  on  the  one  hand,  to  make  the  number  authorized  to  convict 
so  lar»e,  as  to  afford  a  reasonable  assurance  that  there  will  be 

O     " 

no  conviction  without  clear  proof  of  guilt,  and,  on  the  other, 
to  make  it  so  small,  as  to  afford  equal  assurance  that  the  guilty 
will  not  escape.  I  do  not  pretend  to  suggest  how  large  the 
majority  ought  to  be,  in  order  to  ensure  this  result ;  but  it  is 
perfectly  certain  that,  as  the  matter  now  stands,  in  nine-tenths 
of  the  cases  in  which  the  power  may  be  called  into  exercise,  it 
will  be  found  utterly  unavailing  for  any  good  purpose.  Indeed, 
it  can  scarcely  fail  to  be  extremely  mischievous ;  for  a  charge 
of  guilt  preferred,  and  not  sustained,  will  always  strengthen 
the  President,  by  enlisting  public  sympathy  in  his  favor,  and 
will  thus  indirectly  sanction  the  very  abuse  for  which  he  was 
subjected  to  trial.  A  President  tried  and  acquitted  will  always 
be  more  powerful  than  he  would  have  been,  had  he  done  nothing 
to  bring  his  conduct  into  question. 

There  is  a  species  of  responsibility  to  which  the  President  is 
subjected,  in  the  fact  that  the  people  may  refuse  to  re-elect 
him.  This  will  certainly  be  felt  in  some  degree,  by  those  Pre- 
sidents for  whom  a  re-election  possesses  greater  charms  than 
any  possible  abuse  of  power.  But  this  is,  under  any  circum- 
stances, a  feeble  security  to  the  people ;  and  it  will  be  found 
of  no  value  whatever,  as  soon  as  the  government  shall  have 
approached  a  little  nearer,  than  at  present,  to  the  confines  of 
absolute  power.  Besides,  the  reasoning  could  not  apply  to  a 
President  in  his  second  term,  and  who,  according  to  the  esta- 
blished usage,  could  not  expect  to  be  re-elected.  This  is  the 
period  through  which  he  may  revel  in  all  the  excesses  of  usurped 
authority,  without  responsibility,  and  almost  without  check  or 
control. 

The  re-eligibility  of  the  President,  from  term  to  term,  is  the 
necessary  source  of  numberless  abuses.  The  fact  that  the  same 
President  may  be  elected,  not  for  a  second  term  only,  but  for  a 
third,  or  fourth,  or  twentieth,  will  ere  long  suggest  to  him  the 
most  corrupting  uses  of  his  powers,  in  order  to  secure  that 
object.  At  present  there  is  no  danger  of  this.  Presidents  are 
now  made,  not  by  the  free  suffrages  of  the  people,  but  by  party 
management ;  and  there  are  always  more  than  one  in  the  suc- 
cessful party,  who  are  looking  to  their  own  turn  in  the  presi- 


OUR  FEDERAL  GOVERNMENT.  122 

dential  office.  It  is  too  early  yet  for  a  monopoly  of  that  high 
honor ;  but  the  time  will  come,  when  the  actual  incumbent  will 
find  means  to  buy  off  opposition,  and  to  ensure  a  continuance  in 
office,  by  prostituting  the  trusts  which  belong  to  it.  This  is 
so  obviously  within  *the  natural  course  of  things,  that 
it  may  well  excite  our  surprise  that  the  convention  "- 
should  have  left  the  public  liberty  wholly  unguarded,  at  so 
assailable  a  point.  It  is  surely  a  plain  dictate  of  wisdom,  and 
a  necessary  provision  in  every  free  government,  that  there 
should  be  some  definite  limit  to  the  duration  of  executive  power, 
in  the  same  hands.  We  cannot  hope  to  be  free  from  the  cor- 
ruptions which  result  from  an  abuse  of  presidential  power  and 
patronage,  until  that  officer  shall  be  eligible  tfnly  for  one  term 
— a  long  term  if  you  please — and  until  he  shall  be  rendered 
more  easily  and  directly  responsible  to  the  power  which  appoints 
him. 

Regarding  this  work  of  Judge  Story  as  a  whole,  it  is  impos- 
sible not  to  be  struck  with  the  laborious  industry  which  he  has 
displayed,  in  the  collection  and  preparation  of  his  materials. 
He  does  not  often  indulge  himself  in  speculations  upon  the 
general  principles  of  government,  but  confines  himself,  with 
great  strictness,  to  the  particular  form  before  him.  Consider- 
ing him  as  a  mere  lawyer,  his  work  does  honor  to  his  learning 
and  research,  and  will  form  a  very  useful  addition  to  our  law 
libraries.  But  it  is  not  in  this  light  only  that  we  are  to  view 
it.  The  author  is  a  politician,  as  well  as  a  lawyer,  and  has 
taken  unusual  pains  to  justify  and  recommend  his  own  peculiar 
opinions.  This  he  has  done,  often  at  the  expense  of  candor 
and  fairness,  and,  almost  invariably,  at  the  expense  of  historical 
truth.  We  may  well  doubt,  therefore,  whether  his  book  will 
not  produce  more  evil  than  good,  to  the  country;  since  the  false 
views  which  it  presents,-  of  the  nature  and  character  of  our 
government,  are  calculated  to  exert  an  influence  over  the  public 
mind,  too  seriously  mischievous  to  be  compensated  by  any  new 
lights  which  it  sheds  upon  other  parts  of  our  Constitution. 
Indeed,  it  is  little  else  than  a  labored  panegyric  upon  that  in- 
strument. Having  made  it,  by  forced  constructions,  and  strange 
misapprehensions  of  history,  to  conform  to  his  own  beau  ideal 
of  a  perfect  government,  he  can  discern  in  it  nothing  that  is 


123          TRUE  NATURE  AND  CHARACTER  OF 

deficient,  nothing  that  is  superfluous.     And  it  is  his  particular 
pleasure  to  arm  it  with  strong  powers,  and  surround  it  with 
imposing  splendors.     In  his  examination  of  the  legislative  de- 
partment, he  has  displayed  an  extraordinary  liberality  of  con- 
cession, in  this  respect.     There  is  not  a  single  important  power 
ever  exercised  or  claimed  for  congress,  which  he  does  not  vin- 
dicate and  maintain.     The  long  contested  powers  to  protect 
manufactures,  to  construct  roads,  with  an  endless  list  of  similar 
objects  to  which  the  public  money  may  be  applied,  present  no 
serious  difficulty  to  his  mind.     An  examination  of  these  several 
subjects,  in  detail,  would  swell  this  review  beyond  its  proper 
limits,  and  is  rendered  Unnecessary  by  the  great  prin- 
L     ^   J  ciples  which  it  has  been  my  object  to  establish.     I 
allude  to  them  here,  only  as  illustrating  the  general  character 
of  this  book,  and  as  showing  the  dangerous  tendency  of  its 
political  principles.     It  is,  indeed,  a  strong  argument  in  favor 
of  federal  power ;  and  when  we  have  said  this,  we  have  given 
it  the  character  which  the  author  will  most  proudly  recognize. 
And  it  is  not  for  the  legislature  alone,  that  these  unbounded 
powers  are  claimed ;  the  other  departments  come  in  for  a  full 
share  of  his  favor.     Even  when  he  is  forced  to  condemn,  he 
does  it  with  a  censure  so  faint,  and  so  softened  and  palliated, 
as  to  amount  to  positive  praise. 

It  is  too  late  for  the  people  of  these  States  to  indulge  them- 
selves in  these  undiscriminating  eulogies  of  their  Constitution. 
We  have,  indeed,  every  reason  to  admire  and  to  love  it,  and  to 
place  it  far  above  every  other  system,  in  all  the  essentials  of 
good  government.  Still,  it  is  far  from  being  perfect,  and  we 
should  be  careful  not  to  suffer  our  admiration  of  what  is  un- 
doubtedly good  in  it,  to  make  us  blind  to  what  is  as  undoubtedly 
evil.  When  we  consider  the  difficulties  under  which  the  con- 
vention labored,  the  great  variety  of  interests  and  opinions 
which  it  was  necessary  for  them  to  reconcile,  it  is  matter  of 
surprise  that  they  should  have  framed  a  government  so  little 
liable  to  objection.  But  the  government  which  they  framed  is 
not  that  which  our  author  has  portrayed.  Even  upon  the 
guarded  principles  for  which  I  have  contended  in  this  review, 
the  action  of  the  whole  system  tends  too  strongly  towards  con- 
solidation. Much  of  this  tendency,  it  is  true,  might  be  cor- 


OUR  FEDERAL  GOVERNMENT.  124 

rected  by  ordinary  legislation ;  but,  even  then,  there  would 
remain  in  the  federal  government  an  aggregate  of  pOAvers, 
which  nothing  but  an  enlightened  and  ever-vigilant  public 
opinion  could  confine  within  safe  limits.  But  if  our  author's 
principles  be  correct,  if  ours  be,  indeed,  a  consolidated  and  not 
a  federative  system,  I,  at  least,  have  no  praises  to  bestow  on  it. 
Monarchy  in  form,  open  and  acknowledged,  is  infinitely  pre- 
feratyle  to  monarchy  in  disguise. 

The  principle  that  ours  is  a  consolidated  government  of  all 
the  people  of  the  United  States,  and  not  a  confederation  of 
sovereign  States,  must  necessarily  render  it  little  less  than 
omnipotent.  That  principle,  carried  out  to  its  legitimate  results, 
will  assuredly  render  the  federal  government  the  strongest  in 
the  world.  The  powers  of  such  a  government  are  supposed  to 
reside  in  a  majority  of  the  people  ;  and,  as  its  responsibility  is 
only  to  the  people,  that  majority  may  make  it  whatever  they 
please.  To  whom  is  that  majority  itself  responsible  ?  Upon 
tlie  theory  that  it  possesses  all  the  powers  of  the  government, 
*there  is  nothing  to  check,  nothing  to  control  it.  In  a  r>H1o-  ~. 
population  strictly  homogeneous  in  interests,  character  L 
and  pursuits,  there  is  no  danger  in  this  principle.  We  adopt  it 
in  all  our  State  governments,  and  in  them  it  is  the  true  prin- 
ciple ;  because  the  majority  can  pass  no  law  which  will  not  affect 
themselves,  in  mode  and  degree,  precisely  as  it  affects  others. 
But  in  a  country  so  extensive  as  the  United  States,  with  great 
differences  of  character,  interests  and  pursuits,  and  with  these 
differences,  too,  marked  by  geographical  lines,  a  fair  opportu- 
nity is  afforded  for  the  exercise  of  an  oppressive  tyranny,  by 
the  majority  over  the  minority.  Large  masses  of  mankind  are 
not  apt  to  be  swayed,  except  by  interest  alone ;  and  wherever 
that  interest  is  distinct  and  clear,  it  presents  a  motive  of  action 
too  strong  to  be  controlled.  Let  it  be  supposed  that  a  certain 
number  of  States,  containing  a  majority  of  the  people  of  all 
the  States,  should  find  it  to  their  interest  to  pass  laws  oppres- 
sive to  the  minority,  and  violating  their  rights  as  secured  by  the 
Constitution.  What  redress  is  there,  upon  the  principles  of  our 
author  ?  Is  it  to  be  found  in  the  federal  tribunals  ?  They  are 
themselves  a  part  of  the  oppressing  government,  and  are,  there- 
fore, not  impartial  judges  of  the  powers  of  that  government. 
10 


TRUE  NATURE  AND  CHARACTER  OF 

Is  it  to  be  found  in  the  virtue  and  intelligence  of  the  people  ? 
This  is  the  author's  great  reliance.  He  acknowledges  that  the 
system,  as  he  understands  it,  is  liable  to  great  abuses ;  but  he 
supposes  that  the  virtue  and  intelligence  of  the  people  -will, 
under  all  circumstances,  prove  a  sufficient  corrective.  Of  what 
people  ?  Of  that  very  majority  who  have  committed  the  injustice 
complained  of,  and  who,  according  to  the  author's  theory,  are 
the  sole  judges  whether  they  have  power  to  do  it  or  n6^  and 
whether  it  be  injustice  or  not.  Under  such  a  system  as  this,  it  is 
a  cruel  mockery  to  talk  of  the  rights  of  the  minority.  If  they 
possess  rights,  they  have  no  means  to  vindicate  them.  The 
majority  alone  possess  the  government ;  they  alone  measure  its 
powers,  and  wield  them  without  control  or  responsibility.  This 
is  despotism  of  the  worst  sort,  in  a  system  like  ours.  More 
tolerable,  by  far,  is  the  despotism  of  one  man,  than  that  of  a 
party,  ruling  without  control,  consulting  its  own  interests,  and 
justifying  its  excesses  under  the  name  of  republican  liberty. 
Free  government,  so  far  as  its  protecting  power  is  concerned,  is 
made  for  minorities  alone. 

But  the  system  of  our  author,  while  it  invites  the  majority  to 
tyrannize  over  the  minority,  and  gives  the  minority  no  redress, 
is  not  safe  even  for  that  majority  itself.  It  is  a  system  un- 
balanced, unchecked,  without  any  definite  rules  to  prevent  it 
from  running  into  abuse,  and  becoming  a  victim  to  its  own  ex- 
cesses. The  separation  and  complete  *independence  of 
J  the  several  departments  of  the  government  is  usually 
supposed  to  afford  a  sufficient  security  against  an  undue  enlarge- 
ment of  the  powers  of  any  one  of  them.  This  is  said  to  be  the 
only  real  discovery  in  politics,  which  can  be  claimed  by  modern 
times ;  and  it  is  generally  considered  a  very  great  discovery, 
and,  perhaps,  the  only  contrivance  by  which  public  liberty  can 
be  preserved.  The  idea  is  wholly  illusory.  It  is  true,  that 
public  liberty  could  scarcely  exist  without  such  separation,  and, 
for  that  reason,  it  was  wisely  adopted  in  our  systems.  But  we 
should  not  rely  on  it,  with  too  implicit  a  confidence,  as  afford- 
ing in  itself,  any  adequate  barrier  against  the  encroachments  of 
power,  or  any  adequate  security  for  the  rights  and  liberties  of 
the  people.  I  have  little  faith  in  these  balances  of  government ; 
because  there  is  neither  knowledge  nor  wisdom  enough  in  man 


OUR  FEDERAL  GOVERNMENT.  126 

to  render  them  accurate  and  permanent.  In  spite  of  every  pre- 
caution against  it,  some  one  department  will  acquire  an  undue 
preponderance  over  the  rest.  The  first  excesses  are  apt  to  be 
committed  by  the  legislature ;  and,  in  a  consolidated  govern- 
ment, such  as  the  author  supposes  ours  to  be,  there  is  a  peculiar 
proneness  to  this.  In  all  free  governments,  the  democratic 
principle  is  continually  extending  itself.  The  people  being 
possessed  of  all  power,  and  feeling  that  they  are  subject  to 
no  authority  except  their  own,  learn,  in  the  end,  to  consider  the 
very  restraints  which  they  have  voluntarily  imposed  upon  them- 
selves, in  their  constitution  of  government,  as  the  mere  creatures 
of  their  own  will,  which  their  own  will  may  at  any  time  destroy. 
Hence  the  legislature,  the  immediate  representatives  of  the 
popular  Avill,  naturally  assume  upon  themselves  every  power 
which  is  necessary  to  carry  that  will  into  effect.  This  is  not 
liberty.  True  political  liberty  demands  many  and  severe  re- 
straints ;  it  requires  protection  against  itself,  and  is  no  longer 
safe,  when  it  refuses  to  submit  to  its  own  self-imposed  discipline. 
But  whatever  power  the  legislature  may  assume,  they  seldom 
retain  it  long.  They  win  it,  not  for  themselves,  but  for  the 
executive.  All  experience  proves  that  this  is  a  usual  result,  in 
every  form  of  free  government.  In  every  age  of  the  world,  the 
few  have  found  means  to  steal  power  from  the  many.  But 
in  our  government,  if  it  be  indeed  a  consolidated  one,  such  a 
result  is  absolutely  inevitable.  The  powers  which  are  expressly 
lodged  in  the  executive,  and  the  still  greater  powers  which  are 
assumed,  because  the  Constitution  does  not  expressly  deny  them, 
a  patronage  which  has  no  limit,  and  acknowledges  no  responsi- 
bility, all  these  are  quite  enough  to  bring  the  legislature  to  the 
feet  of  the  executive.  Every  new  power,  therefore,  which  is 
assumed  by  the  federal  government,  does  but  add  *so 
much  to  the  powers  of  the  President.  One  by  one,  the  "- 
powers  of  the  other  departments  are  swept  away,  or  are  wielded 
only  at  the  will  of  the  executive.  This  is  not  speculation ;  it  is 
history ;  and  those  who  have  been  so  eager  to  increase  the 
powers,  and  to  diminish  the  responsibilities,  of  the  federal 
government,  may  know,  from  their  own  experience,  that  they 
have  labored  only  to  aggrandize  the  executive  department,  and 
raise  the  President  above  the  people.  That  officer  is  not,  by  the 


127          TRUE  NATURE  AND  CHARACTER  OF 

Constitution,  and  never  was  designed  to  be,  anything  more  than 
a  simple  executive  of  the  laws ;  but  the  principle  which  con- 
solidates all  power  in  the  federal  government  clothes  him  with 
royal  authority,  and  subjects  every  right  and  every  interest  of 
the  people  to  his  will.  The  boasted  balance,  which  is  supposed 
to  be  found  in  the  separation  and  independence  of  the  depart- 
ments, is  proved,  even  by  our  own  experience,  apart  from  all 
reasoning,  to  afford  no  sufficient  security  against  this  accumula- 
tion of  powers.  It  is  to  be  feared  that  the  reliance  which  we 
place  on  it  may  serve  to  quiet  our  apprehensions,  and  render  us 
less  vigilant,  than  we  ought  to  be,  of  the  progress,  sly,  yet  sure, 
which  a  vicious  and  cunning  President  may  make  towards  abso- 
lute power. 

And  let  us  not  sleep  in  the  delusion  that  we  shall  derive  all 
needful  security  from  our  own  "intelligence  and  virtue."  The 
people  may,  indeed,  preserve  their  liberties  forever,  if  they  will 
take  care  to  be  always  virtuous,  always  wise,  and  always  vigilant. 
And  they  will  be  equally  secure,  if  they  can  assure  themselves 
that  the  rulers  they  may  select  will  never  abuse  their  trust,  but 
will  always  understand  and  always  pursue  the  true  interests  of 
the  people.  But,  unhappily,  there  are  no  such  people,  and  no 
such  rulers.  A  government  must  be  imperfect,  indeed,  if  it 
require  such  a  degree  of  virtue  in  the  people  as  renders  all 
government  unnecessary.  Government  is  founded,  not  in  the 
virtues,  but  in  the  vices  of  mankind  ;  not  in  their  knowledge 
and  wisdom,  but  in  their  ignorance  and  folly.  Its  object  is  to 
protect  the  weak,  to  restrain  the  violent,  to  punish  the  vicious, 
and  to  compel  all  to  the  performance  of  the  duty  which  man 
owes  to  man  in  a  social  state.  It  is  not  a  self-acting  machine, 
which  will  go  on  and  perform  its  work  without  human  agency ; 
it  cannot  be  separated  from  the  human  beings  who  fill  its  places, 
set  it  in  motion,  and  regulate  and  direct  its  operations.  So  long 
as  these  are  liable  to  err  in  judgment,  or  to  fail  in  virtue,  so 
long  will  government  be  liable  to  run  into  abuses.  Until  all 
men  shall  become  so  perfect  as  not  to  require  to  be  ruled,  all 
governments  professing  to  be  free  will  require  to  be  watched, 
guarded,  checked  and  controlled.  To  do  this  effectually  requires 

F  *1£>81  m°re  t*ian  *we  Senera%  fin(*  of  public  virtue  and  pub- 
J  lie  intelligence.    A  great  majority  of  mankind  are  much 


OUR  FEDERAL  GOVERNMENT.  128 

more  sensible  to  their  interests  than  to  their  rights.  Whenever 
the  people  can  be  persuaded  that  it  is  their  greatest  interest  to 
maintain  their  rights,  then,  and  then  only,  will  free  government 
be  safe  from  abuses. 

Looking  to  our  own  federal  government,  apart  from  the 
States,  and  regarding  it,  as  our  author  would  have  us,  as  a  con- 
solidated government  of  all  the  people  of  the  United  States,  we 
shall  not  find  in  it  this  salutary  countervailing  interest.  In  an 
enlarged  sense,  it  is,  indeed,  the  greatest  interest  of  all  to  sup- 
port that  government  in  its  purity ;  for,  although  it  is  un- 
doubtedly defective  in  many  important  respects,  it  is  much  the 
best  that  has  yet  been  devised.  Unhappily,  however,  the 
greatest  interest  of  the  whole  is  not  felt  to  be,  although  in  truth 
it  is,  the  greatest  interest  of  all  the  parts.  This  results  from 
the  fact,  that  our  character  is  not  homogeneous,  and  our 
pursuits  are  wholly  different.  Rightly  understood,  this  fact 
should  tend  to  bind  us  the  more  closely  together,  by  showing  us 
our  dependence  upon  each  other ;  and  it  should  teach  us  the 
necessity  of  watching,  with  the  greater  jealousy,  every  departure 
from  the  strict  principles  of  our  union.  It  is  a  truth,  however, 
no  less  melancholy  than  incontestable,  that  if  this  ever  was  the 
view  of  the  people,  it  has  ceased  to  be  so.  And  it  could  not  be 
otherwise.  Whatever  be  the  theory  of  our  Constitution,  its 
practice,  of  late  years,  has  made  it  a  consolidated  government ; 
the  government  of  an  irresponsible  majority.  If  that  majority 
can  find,  either  in  the  pursuits  of  their  own  peculiar  industry, 
or  in  the  offices  and  emoluments  which  flow  from  the  patronage 
of  the  government,  an  interest  distinct  from  that  of  the  minority, 
they  will  pursue  that  interest,  and  nothing  will  be  left  to  the 
minority  but  the  poor  privilege  of  complaining.  Thus  the 
government  becomes  tyrannous  and  oppressive,  precisely  in 
proportion  as  its  democratic  principle  is  extended ;  and  instead 
of  the  enlarged  and  general  interest  which  should  check  and 
restrain  it,  a  peculiar  interest  is  enlisted,  to  extend  its  powers 
and  sustain  its  abuses.  Public  virtue  and  intelligence  avail 
little,  in  such  a  condition  of  things  as  this.  That  virtue  falls 
before  the  temptations  of  interest  which  you  present  to  it,  and 
that  intelligence,  thus  deprived  of  its  encouraging  hopes,  serves 


128          TRUE  NATURE  AND  CHARACTER  OF 

only  to  point  out  new  objects  of  unlawful  pursuit,  and  suggest 
new  and  baser  methods  of  attaining  them. 

This  result  could  scarcely  be  brought  about,  if  the  federal 
government  were  allowed  to  rest  on  the  principles  upon  which 
I  have  endeavored  to  place  it.  The  checking  and  controlling 
influences  which  *afford  safety  to  public  liberty,  are  not 
L  -I  to  be  found  in  the  government  itself.  The  people  can- 
not always  protect  themselves  against  their  rulers ;  if  they  could, 
no  free  government,  in  past  times,  would  have  been  overthrown. 
Power  and  patronage  cannot  easily  be  so  limited  and  defined,  as 
to  rob  them  of  their  corrupting  influences  over  the  public  mind. 
It  is  truly  and  wisely  remarked  by  the  Federalist,  that  "a  power 
over  a  man's  subsistence  is  a  power  over  his  will."  As  little  as 
possible  of  this  power  should  be  entrusted  to  the  federal  govern- 
ment, and  even  that  little  should  be  watched  by  a  power  au- 
thorized and  competent  to  arrest  its  abuses.  That  power  can 
be  found  only  in  the  States.  In  this  consists  the  great  su- 
periority of  the  federative  system  over  every  other.  In  that 
system,  the  federal  government  is  responsible,  not  directly  to 
the  people  en  masse,  but  to  the  people  in  their  character  of  dis- 
tinct political  corporations.  However  easy  it  may  be  to  steal 
power  from  the  people,  governments  do  not  so  readily  yield  it  to 
one  another.  The  confederated  States  confer  on  their  common 
government  only  such  power  as  they  themselves  cannot  sepa- 
rately exercise,  or  such  as  can  be  better  exercised  by  that 
government.  They  have,  therefore,  an  equal  interest,  to  give 
it  power  enough,  and  to  prevent  it  from  assuming  too  much. 
In  their  hands  the  power  of  interposition  is  attended  with  no 
danger ;  it  may  be  safely  lodged  where  there  is  no  interest  to 
abuse  it. 

Under  a  federative  system,  the  people  are  not  liable  to  be 
acted  on,  (at  least,  not  to  the  same  extent,)  by  those  influences 
which  are  so  apt  to  betray  and  enslave  them,  under  a  consoli- 
dated government.  Popular  masses,  acting  under  the  excite- 
ments of  the  moment,  are  easily  led  into  fatal  errors.  History 
is  full  of  examples  of  the  good  and  great  sacrificed  to  the  hasty 
judgments  of  infuriated  multitudes,  and  of  the  most  fatal  pub- 
lic measures  adopted  under  the  excitements  of  the  moment. 
How  easy  is  it  for  the  adroit  and  cunning  to  avail  themselves 


OUR  FEDERAL  GOVERNMENT.  129 

of  such  occasions,  and  how  impossible  is  it,  for  a  people  so 
acted  on,  to  watch  their  rulers  wisely,  and  guard  themselves 
against  the  encroachments  of  power  ?  In  a  federative  system, 
this  danger  is  avoided,  so  far  as  their  common  government  is 
concerned.  The  right  of  interposition  belongs,  not  to  the  peo- 
ple in  the  aggregate,  but  to  the  people  in  separate  and  compa- 
ratively small  subdivisions.  And  even  in  these  subdivisions, 
they  can  act  only  through  the  forms  of  their  own  separate 
governments.  These  are  necessarily  slow  and  deliberate,  afford- 
ing time  for  excitement  to  subside,  and  for  passion  to  cool. 
Having  to  pass  through  their  own  governments,  before  they 
can  reach  that  of  the  United  States,  they  are  forbidden  to  act, 
until  they  have  *had  time  for  reflection,  and  for  the  r*-j  on  -i 
exercise  of  a  cool  and  temperate  judgment.  Besides, 
they  are  taught  to  look,  not  to  one  government  only,  for  the 
protection  and  security  of  their  rights,  and  not  to  feel  that  they 
owe  obedience  only  to  that.  Conscious  that  they  can  find,  in 
their  own  State  governments,  protection  against  the  wrongs  of 
the  federal  government,  their  feeling  of  dependence  is  less 
oppressive,  and  their  judgments  more  free.  And  while  their 
efforts  to  throw  off  oppression  are  not  repressed  by  a  feeling 
that  there  is  no  power  to  which  they  can  appeal,  these  efforts 
are  kept  under  due  restraints,  by  a  consciousness  that  they 
cannot  be  unwisely  exerted,  except  to  the  injury  of  the  people 
themselves.  It  is  difficult  to  perceive  how  a  federal  govern- 
ment, established  on  correct  principles,  can  ever  be  overthrown, 
except  by  external  violence,  so  long  as  the  federative  principle 
is  duly  respected  and  maintained.  All  the  requisite  checks  and 
balances  will  be  found,  in  the  right  of  the  States  to  keep  their 
common  government  within  its  proper  sphere ;  and  a  sufficient 
security  for  the  due  exercise  of  that  right  is  afforded  by  the 
fact,  that  it  is  the  interest  of  the  States  to  exercise  it  discreetly. 
So  far  as  our  own  government  is  concerned,  I  venture  to  pre- 
dict that  it  will  become  absolute  and  irresponsible,  precisely  in 
proportion  as  the  rights  of  the  States  shall  cease  to  be  respect- 
ed, and  their  authority  to  interpose  for  the  correction  of  federal 
abuses  shall  be  denied  and  overthrown. 

It  should  be  the  object  of  every  patriot  in  the  United  States 
to  encourage  a  high  respect  for  the  State  governments.     The 


TRUE  NATURE  AND  CHARACTER  OF 

people  should  be  taught  to  regard  them  as  their  greatest  inte- 
rest, and  as  the  first  objects  of  their  duty  and  affection.  Main- 
tained in  their  just  rights  and  powers,  they  form  the  true 
balance-wheel,  the  only  effectual  check  upon  federal  encroach- 
ments. And  it  possesses  as  a  check  these  distinguishing 
advantages  over  every  other,  that  it  can  never  be  applied  with- 
out great  deliberation  and  caution,  that  it  is  certain  in  its 
effects,  and  that  it  is  but  little  liable  to  abuse.  It  is  true  that 
a  State  may  use  its  power  for  improper  purposes,  or  on  impro- 
per occasions ;  but  the  federal  government  is,  to  say  the  least 
of  it,  equally  liable  to  dangerous  errors  and  violations  of  trust. 
Shall  we  then  leave  that  government  free  from  all  restraint, 
merely  because  the  proper  countervailing  power  is  liable  to 
abuse  ?  Upon  the  same  principle,  we  should  abandon  all  the 
guards  and  securities,  which  we  have  so  carefully  provided  in 
the  Federal  Constitution  itself.  The  truth  is,  all  checks  upon 
government  are  more  or  less  imperfect ;  for  if  it  were  not  so, 
government  itself  would  be  perfect.  But  this  is  no  reason  why 
we  should  abandon  it  to  its  own  will.  We  have  only  to  apply 
f*1 31 1  to  ^"s  subject  our  *best  discretion  and  caution,  to  con- 
fer no  more  power  than  is  absolutely  necessary,  and  to 
guard  that  power  as  carefully  as  we  can.  Perfection  is  not  to 
be  hoped  for ;  but  an  approximation  to  it,  sufficiently  near  to 
afford  a  reasonable  security  to  our  rights  and  liberties,  is  not 
unattainable.  In  the  formation  of  the  federal  government  we 
have  been  careful  to  limit  its  powers,  and  define  its  duties.  Our 
object  was  to  render  it)  such  that  the  people  should  feel  an 
interest  in  sustaining  it  in  its  purity,  for  otherwise  it  could  not 
long  subsist.  Upon  the  same  principle,  we  should  enlist  the 
same  interest  in  the  wise  and  proper  application  of  those  checks, 
which  its  unavoidable  imperfections  render  necessary.  That 
interest  is  found  in  the  States.  Having  created  the  federal 
government  at  their  own  free  will,  and  for  their  own  uses,  why 
should  they  seek  to  destroy  it  ?  Having  clothed  it  with  a  cer- 
tain portion  of  their  own  powers,  for  their  own  benefit  alone, 
why  should  they  desire  to  render  those  powers  inoperative  and 
nugatory  ?  The  danger  is,  not  that  the  States  will  interpose 
too  often,  but  that  they  will  rather  submit  to  federal  usurpa- 
tions, than  incur  the  risk  of  embarrassing  that  government,  by 


OUR   FEDERAL    GOVERNMENT. 

any  attempts  to  check  and  control  it.  Flagrant  abuses  alone, 
and  such  as  public  liberty  cannot  endure,  will  ever  call  into 
action  this  salutary  and  conservative  power  of  the  States. 

But  whether  this  check  be  the  best  or  the  worst  in  its  nature, 
it  is  at  least  one  which  our  system  allows.  It  is  not  found 
within  the  Constitution  but  exists  independent  of  it.  As  that 
Constitution  was  formed  by  sovereign  States,  they  alone  are 
authorized,  whenever  the  question  arises  between  them  and  their 
common  government,  to  determine,  in  the  last  resort,  what 
powers  they  intended  to  confer  on  it.  This  is  an  inseparable 
incident  of  sovereignty ;  a  right  which  belongs  to  the  States, 
simply  because  they  have  never  surrendered  it  to  any  other 
power.  But  to  render  this  right  available  for  any  good  pur- 
pose, it  is  indispensably  necessary  to  maintain  the  States  in 
their  proper  position.  If  their  people  suffer  them  to  sink  into 
the  insignificance  of  mere  municipal  corporations,  it  will  be 
vain  to  invoke  their  protection  against  the  gigantic  power  of 
the  federal  government.  This  is  the  point  to  which  the  vigi- 
lance of  the  people  should  be  chiefly  directed.  Their  highest 
interest  is  at  home ;  their  palladium  is  their  own  State  govern- 
ments. They  ought  to  know  that  they  can  look  nowhere  else 
with  perfect  assurance  of  safety  and  protection.  Let  them,  then 
maintain  those  governments,  not  only  in  their  rights,  but  in 
their  dignity  and  influence.  Make  it  the  interest  of  their  peo- 
ple to  serve  them ;  an  interest  strong  enough  to  resist  all  the 
temptations  of  federal  office  and  *patronage.  Then  r-^,-.  on  -i 
alone  will  their  voice  be  heard  with  respect  at  Wash- 
ington ;  then  alone  will  their  interposition  avail  to  protect  their 
own  people  against  the  usurpations  of  the  great  central  power. 
It  is  vain  to  hope  that  the  federative  principle  of  our  govern- 
ment can  be  preserved,  or  that  any  thing  can  prevent  it  from 
running  into  the  absolutism  of  consolidation,  if  we  suffer  the 
I'ights  of  the  States  to  be  filched  away,  and  their  dignity  and 
influence  to  be  lost,  through  our  carelessness  or  neglect. 
11 


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